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may not take over the bid. Accordingly, the contracting officer shall reject the bid (see Comptroller General deci. sion B-171959, September 3, 1971). [29 FR 10141, July 24, 1964, as amended at 32 FR 2626, Feb. 8, 1967; 36 FR 17421, Aug. 31, 1971; 38 FR 32808, Nov. 28, 1973)

§ 1-2.404-3 Notice to bidders of rejection

of all bids. When it is determined to reject all bids, the contracting officer shall notify each bidder that all bids have been rejected, stating the reason for such action.

For example, bids shall be rejected in which the bidder:

(1) Attempts to protect himself against future changes in conditions such as increased costs, if total price to the Government cannot be determined for bid evaluation.

(2) Fails to state a price and, in lieu thereof, states that price shall be "price in effect at time of delivery."

(3) States a price but qualifies such price as being subject to "price in effect at time of delivery.”

(4) Where not authorized by the invitation, conditions or qualifies his bid by stipulating that the bid is to be considered only if, prior to date of award, bidder receives (or does not receive) award under a separate procurement.

(5) Limits rights of Government under any contract clause. However, a low bidder may be requested to delete objectionable conditions from his bid if these conditions do not go to the substance, as distinguished from the form of the bid. A condition goes to the substance of a bid where it affects price, quantity, quality, or delivery of the items offered.

(c) Any bid may be rejected if the contracting officer determines in writing that it is unreasonable as to price.

(d) Bids received from any person or concern debarred or ineligible shall be rejected if the period of debarment or ineligibility has not expired (see Subpart 1-1.6).

(e) Low bids received from firms de. termined to be not responsible, pursuant to Subpart 1-1.12, shall be rejected (but if a bidder is a small business concern, see Subpart 1-1.7 with respect to certificates of competency).

(f) Where a bid guarantee is required and a bidder fails to furnish it in accordance with the requirements of the invitation for bids, the old shall be rejected except as otherwise provided in § 1-10.103-4.

(g) The originals of all rejected bids and any written findings with respect to such rejections, shall be preserved with the papers relating to the procurement.

(h) After submitting a bid, if a bidder transfers all of his assets or that part of his assets related to the bid during the period between the bid opening and the award, the transferee

& 1-2.404-4 Restrictions on disclosure of

descriptive literature. (a) When a bid is accompanied by descriptive literature (as defined in § 1-2.202-5(a)), and the bidder imposes a restriction that such literature may not be publicly disclosed, such restriction renders the bid nonresponsive if it prohibits the disclosure of sufficient information to permit competing bidders to know the essential nature and type of the products offered or those elements of the bid which relate to quantity, price and delivery terms. The provisions of this paragraph (a) do not apply to unsolicited descriptive literature submitted by a bidder if such literature does not qualify the bid (see § 1-2.202-5(f)).

(b) Descriptive literature restricted by a bidder against public disclosure shall not be disclosed in a manner which would contravene the restriction without permission of the bidder.

§ 1-2.404-5 All or none qualifications.

Unless the invitation for bids so provides a bid is not rendered nonresponsive by the fact that the bidder speci. fies that award will be accepted only on all, or a specified group, of the items included in the invitation for bids. However, bidders shall not be permitted to withdraw or modify "all or none" qualifications after bid opening since such qualifications are substantive and affect the rights of other bidders.

§ 1-2.405 Minor informalities or irregular. negligible effect on price, quantity, ities in bids.

quality, or delivery of the item bid A minor informality or irregularity

upon. is one which is merely a matter of

8 1-2.406 Mistakes in bids. form and not of substance or pertains to some immaterial or inconsequential

§ 1-2.406-1 General. defect or variation of a bid from the exact requirement of the invitation for

After the opening of bids, contract. bids, the correction or waiver of which ing officers shall examine all bids for would not be prejudicial to other bid- mistakes. In cases of apparent misders. The defect or variation in the bid takes and in cases where the contractis immaterial and inconsequential ing officer has reason to believe that a when its significance as to price, quan- mistake may have been made, he shall tity, quality, or delivery is trivial or request from the bidder a verification negligible when contrasted with the of the bid, calling attention to the sustotal cost or scope of the supplies or pected mistake. If the bidder alleges a services being procured. The contract. mistake, the matter shall be processed ing officer shall either give the bidder in accordance with this g 1-2.406. Such an opportunity to cure any deficiency

actions shall be taken prior to award.

actions shall be taken prior to a resulting from a minor informality or irregularity in a bid or waive such defi- § 1-2.406-2 Apparent clerical mistakes. ciency, whichever is to the advantage

Any clerical mistake, apparent on of the Government. Examples of

the face of a bid, may be corrected by minor informalities or irregularities

the contracting officer prior to award, include:

if the contracting officer has first ob(a) Failure of bidder to return the

tained from the bidder verification of number of copies of signed bids re

the bid actually intended. Examples of quired by the invitation for bids.

such apparent mistakes are: obvious (b) Failure to furnish required infor

misplacement of a decimal point; obvimation concerning the number of bidders' employees.

ously incorrect discounts (for example, (c) Failure of bidder to sign its bid. 1 percent 10 days, 2 percent 20 days, 5 but only if: (1) The unsigned bid is ac

percent 30 days); obvious reversal of

the price f.o.b. destination and the companied by other material indicating the bidder's intention to be bound

price f.o.b. origin; and obvious mistake by the unsigned bid document, such as

in designation of unit. Correction shall

be reflected in the award document. the submission of a bid guarantee, or a letter signed by the bidder with the

8 1-2.406-3 Other mistakes disclosed bid referring to and clearly identifying

before award. the bid itself; or (2) the firm submitting a bid has formally adopted or au

(a) Heads of executive agencies are thorized, before the date set for open authorized, in order to minimize delay ing of bids, the execution of docu in contract awards, to make the adments by typewritten, printed, or ministrative determinations described stamped signature and submits evi below in connection with mistakes in dence of such authorization and the bids alleged after opening of bids and bid carries such a signature.

before award. The authority contained (d) Failure of a bidder to acknowl. herein to permit correction of bids is edge receipt of an amendment to an limited to bids which, as submitted, invitation for bids, but only if:

are responsive to the invitation for (1) The bid received clearly indicates bids, and may not be used to permit that the bidder received the amend. correction of bids to make them rement, such as where the amendment sponsive. This authority is in addition added another item to the invitation to that in § 1-2.406-2 or that which for bids and the bidder submitted a may be otherwise available. bid thereon; or

(1) A determination may be made (2) The amendment involves only a permitting the bidder to withdraw his matter of form or is one which has bid where the bidder requests permiseither no effect or merely a trivial or sion to do so and clear and convincing

evidence establishes the existence of a (1) Whenever the contracting officer mistake.

suspects that a mistake may have been (2) However, if the evidence is clear made in a bid, he shall immediately reand convincing both as to the exist quest the bidder to verify the bid. ence of a mistake and as to the bid ac- Such request shall inform the bidder tually intended, and if the bid, both as why the request for verification is uncorrected and corrected, is the made—that a mistake is suspected and lowest received, a determination may the basis for such suspicion; e.g., that be made to correct the bid and not the bid is significantly out of line with permit its withdrawal.

the next low or other bids or with the (3) A determination may be made

Government's estimate. If the time for permitting the bidder to correct his

acceptance of bids is likely to expire bid where the bidder requests permis

before a decision can be made, the sion to do so and clear and convincing

contracting officer shall request all evidence establishes both the exist

bidders whose bids may become eligience of a mistake and the bid actually

ble for award to extend the time for intended. However, if such correction

acceptance of their bids. If the bidder would result in displacing one or more

whose bid is believed erroneous does lower acceptable bids, the determina

not grant such extension of time and a tion shall not be made unless the ex

decision cannot be reached before existence of the mistake and the bid ac

piration of the time for acceptance, tually intended are ascertainable sub

even if handled by telegraph or telestantially from the invitation and bid

phone as provided in paragraph (d)(4) itself. If the evidence is clear and con

of this section, the bid shall be considvincing only as to the mistake, but not

ered as originally submitted. as to the intended bid, a determination

(2) If the bidder verifies his bid, the

contracting officer shall consider it as permitting the bidder to withdraw his bid may be made.

originally submitted. If the bidder al

leges a mistake, the contracting officer (4) If the evidence does not warrant

shall advise him to support his allegaa determination under paragraphs (a)

tion by statements concerning the al(1), (2), or (3) of this section, a deter

leged mistake and by all pertinent evimination may be made that a bidder

dence, such as the bidder's file copy of may neither withdraw nor correct his

the bid, his original worksheets and bid.

other data used in preparing the bid, (b) Heads of executive agencies may

subcontractors' and suppliers' quotadelegate to a central authority in their

tions, if any, published price lists, and agencies, without power of redelega

any other evidence which will serve to tion, authority to make the determina

establish the mistake, the manner in tions under paragraphs (a) (2), (3), and which it occurred, and the bid actually (4) this section. The authority to make

intended. determinations to permit withdrawal

(3) Where the bidder furnishes eviof bids as provided in paragraphs (a) dence in support of an alleged mis(1) and (3) of this section may be dele

take, the case shall be referred to the gated, without power of redelegation,

put power oi redelegation, appropriate authority together with to any purchasing activity having legal the following data: counsel available.

(i) All evidence furnished by the (c) Each proposed determination bidder. shall be approved by the agency's (ii) A copy of the bid, of the invitaGeneral Counsel, Associate General tion for bids, and any specifications or Counsel, an Assistant General Coun- drawings relevant to the alleged missel, or other comparable legal officer. take. However, authority to approve deter- (iii) An abstract or record of the bids minations to allow withdrawal of bids received. pursuant to paragraphs (a) (1) and (3) (iv) A written statement by the conof this section may be delegated to the tracting officer setting forthlegal counsel of purchasing activities. (A) The expiration date of the bid in

(d) Suspected or alleged mistakes question and of the other bids submitshall be processed as follows:

ted;

ties.

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(B) Specific information as to how nor deprive any bidder of his right to and when the mistake was alleged; have the matter determined by the

(C) A summary of the evidence sub- Comptroller General should he so remitted by the bidder;

quest. All doubtful cases shall be sub(D) In the event only one bid was re- mitted to the Comptroller General for ceived, a quotation of a recent con- advance decision in accordance with tract price for the supplies or services agency procedures. involved, or, in the absence of a recent (f) Each agency shall maintain comparable contract, the contracting records of all administrative determiofficer's estimate of a fair price for the nations made in accordance with this supplies or services and the basis for $ 1-2.406-3, the facts involved, and the such estimate;

action taken in each case. Copies of all (E) Any additional evidence consid- such administrative determinations ered pertinent including copies of all shall be included in the case file. correspondence between the contract Where a contract is awarded, the Gening officer and the bidder concerning eral Accounting Office copy of the the alleged mistake; and

contract, wherever filed, shall be ac(F) The course of action with respect companied by a signed copy of any reto the bid that the contracting officer lated determination. considers proper on the basis of the evidence.

[29 FR 10141, July 24, 1964, as amended at

41 FR 27725, July 6, 1976) (4) When time is of the essence, because of the expiration of bids or oth

§ 1-2.406-4 Disclosure of mistakes after erwise, the contracting officer may

award. refer the case by telegraph or telephone to the designated authority. Or

(a) When a mistake in a contractor's dinarily, however, contracting officers

bid is not discovered until after the will not refer mistake in bid cases to

award, the mistake may be corrected the designated authority by telegraph

by contract amendment or supplemenor telephone, particularly when the tal agreement if correcting the misdeterminations set forth in paragraph

take would make the contract more fa(a) (2) and (3) of this section are appli

vorable to the Government without cable, since actual examination of the

changing the essential requirements of evidence is generally necessary to de

the contract. termine the proper action to be taken.

(b) In addition to the cases contem(5) Where the bidder fails or refuses

plated in paragraph (a) of this section, to furnish evidence in support of a sus

contracting officers are authorized, pected or alleged mistake, the con- under the circumstances set forth in tracting officer shall consider the bid paragraph (c) of this section and in acas submitted unless the amount of the cordance with agency procedures, to bid is so far out of line with the make certain determinations in conamounts of other bids received or with

nection with mistakes in bids alleged the amount estimated by the agency

or disclosed after award. A determinaor determined by the contracting offi- tion may be made: (1) To rescind a cer to be reasonable, or there are contract or (2) to reform a contract: other indications of error so clear, as (i) By deleting the item or items inreasonably to justify the conclusion volved in the mistake or that acceptance of the bid would be (ii) By increasing the price if the unfair to the bidder or to other bona contract price, as corrected, does not fide bidders, in which case it may be exceed that of the next lowest acceptrejected. The attempts made to obtain able bid under the original invitation the information required and the for bids. action taken with respect to the bid (c) Determinations under paragraph shall be fully documented.

(b) of this section may be made only (e) Nothing contained in this g1- on the basis of clear and convincing 2.406-3 shall deprive the Comptroller evidence that a mistake in bid was General of his statutory right to ques- made, and either that the mistake was tion the correctness of any administra- mutual or that the unilateral mistake tive determination made hereunder made by the contractor was so appar

ent as to have charged the contracting officer with notice of the probability of the mistake. If the evidence does not warrant a determination under paragraph (b)(1) or (b)(2) of this section, a determination may be made that no change shall be made in the contract as awarded.

(d) Each proposed determination shall be coordinated with the agency's Office of General Counsel in accordance with agency procedures.

(e) Mistakes disclosed after award shall be processed as follows:

(1) Whenever a mistake in bid is al. leged or disclosed after award, the contracting officer shall advise the contractor to support the alleged error by written statements and by all pertinent evidence, such as the contractor's file copy of the bid, the original work sheets and other data used in preparing the bid, subcontractors' and suppliers' quotations (if any), published price lists, and any other evidence which will serve to establish the mistake, the manner in which it occurred, and the bid actually intended.

(2) Where the contractor furnishes evidence in support of an alleged mistake, the case file shall contain the following data:

(i) All evidence furnished by the contractor.

(ii) A copy of the contract, including a copy of the bid and any specifications or drawings relevant to the alleged mistake, and any change orders or supplemental agreements thereto.

(iii) An abstract or record of the bids received.

(iv) A written statement by the contracting officer setting forth

(A) Specific information as to how and when the mistake was alleged or disclosed;

(B) A summary of the evidence submitted by the contractor;

(C) The contracting officer's opinion whether a bona fide mistake was made in the bid and whether he or she was, or should have been, on constructive notice of the mistake before the award, together with the reasons or data upon which his or her opinion is based;

(D) In the event only one bid was received, a quotation of a recent contract price for the supplies or services

involved or, in the absence of a recent comparable contract, the contracting officer's estimate of a fair price for the supplies or services, and the basis for the estimate;

(E) Any additional evidence considered pertinent, including copies of all relevant correspondence between the contracting officer and the contractor concerning the alleged mistake;

(F) The course of action with respect to the alleged mistake that the contracting officer considers proper on the basis of the evidence, and, if other than a change in contract price is recommended, the manner by which the item will otherwise be procured; and

(G) The status of performance and payments under the contract, including contemplated performance and payments.

(f) Any contractor wishing to dispute a contracting officer's determination regarding a mistake-in-bid may do so pursuant to the Disputes clause in the solicitation (see § 1-1.318).

(g) Each agency shall maintain records of all determinations made in accordance with this § 1-2.406-4, the facts involved, and the action taken in each case. A copy of the determination shall be attached to each copy of any contract rescission or reformation resulting therefrom. [45 FR 10791, Feb. 19, 1980)

§ 1-2.407 Award.

§ 1-2.407-1 General.

(a) Unless all bids are rejected, award shall be made by the contracting officer by written notice, within the time for acceptance specified in the bid or extension thereof, to that responsible bidder whose bid, conforming to the invitation for bids, will be most advantageous to the Government, price and other factors considered. (For discussion of other factors to be considered, see § 1-2.407-5.) Award shall not be made until all required approvals have been obtained.

(b) If less than three bids have been received, the contracting officer shall examine, to the extent deemed appropriate in accordance with agency procedures, the reasons for the small number of bids received. The purpose

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