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$ 1-1.307–6 Invitation for bids, "brand

name or equal” descriptions. (a) Except as provided in paragraph (b) of this g 1-1.307-6 when a “brand name or equal” purchase description is included in an invitation for bids:

(1) The following shall be inserted after each item so described in the invitation, for completion by the bidder

tion as is necessary to describe the item required:

(1) Complete common generic identification of the item required.

(2) Applicable model, make, or catalog number for each brand name product referenced, and identity of the commercial catalog in which it appears.

(3) Name of manufacturer, producer, or distributor of each brand name product referenced (and address if company is not well known).

(c) When necessary to describe adequately the item required, an applicable commercial catalog description, or pertinent extracts therefrom, may be used if such description is identified in the invitation for bids or request for proposals as being that of the particular named manufacturer, producer, or distributor. [29 FR 10104, July 24, 1964, as amended at 36 FR 288, Jan. 8, 1971; 40 FR 2810, Jan. 16, 1975]

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81-1.307-5 Limitations on use of “brand

name or equal” purchase descriptions. Brand name or equal” purchase descriptions may be used only under the circumstances in paragraph (a) or (b) of this § 1-1.307-5:

(a) When a suitable formal Government specification or standard or industry standardization document approved for agency use is not available, and a purchase description of the type referred to in § 1-1.307-3 is inadequate or unavailable, and a purchase description meeting the general requirements of § 1-1.307-2 cannot be prepared because:

(1) Construction or composition of the product to be procured is too technically involved;

(2) Public exigency or military neces. sity precludes timely development; or

(3) It is impracticable or uneconomical to prepare a purchase description.

(b) When purchasing items for authorized resale, except military cloth ing.

(c) The product to be referenced must, in any event, be regularly of. fered for sale to the public.

(d) When a “brand name or equal” description is used, a notation shall be made in the case file as to the reasons therefor.

BRAND NAME OR EQUAL (As used in this clause, the term “brand name” includes identification of products by make and model.)

(a) If items called for by this invitation for bids have been identified in the schedule by a “brand name or equal" description, such identification is intended to be descriptive, but not restrictive, and is to indicate the quality and characteristics of products that will be satisfactory. Bids offering "equal” products (including products of the brand name manufacturer other than the one described by brand name) will be considered for award if such products are clearly identified in the bids and are determined by the Government to meet fully the salient characteristics requirements listed in the invitation.

(b) Unless the bidder clearly indicates in his bid that he is offering an "equal” product, his bid shall be considered as offering a brand name product referenced in the invi. tation for bids.

(c)(1) If the bidder proposes to furnish an "equal” product, the brand name, if any, of the product to be furnished shall be inserted in the space provided in the invitation for bids, or such product shall be otherwise clearly identified in the bid. The evaluation of bids and the determination as to equality of the product offered shall be the responsibility of the Government and will be based on information furnished by the bidder or identified in his bid as well as other information reasonably available to the purchasing activity. CAUTION TO BIDDERS. The purchasing activity is not responsible for locating or securing any information which is not identified in the bid and reasonably available to the purchasing activity. Accordingly, to insure that sufficient information is available, the bidder must furnish as a part of his bid all descriptive material (such

as cuts, illustrations, drawings, or other information) necessary for the purchasing activity to (i) determine whether the product offered meets the salient characteristics requirement of the invitation for bids, and (ii) establish exactly what the bidder proposes to furnish and what the Government would be binding itself to purchase by making an award. The information furnished may in clude specific references to information previously furnished or to information otherwise available to the purchasing activity.

(2) If the bidder proposes to modify a product so as to make it conform to the requirements of the Invitation for Bids, he shall (i) include in his bid a clear description of such proposed modifications and (ii) clearly mark any descriptive material to show the proposed modifications.

(3) Modifications proposed after bid opening to make a product conform to a brand name product referenced in the Invitation for Bids will not be considered.

(b) Where a component part of an end item is described in the invitation for bids by a “brand name or equal” purchase description and the contract. ing officer determines that application of the clause in (a)(2) of this § 1-1.3076 to such component part would be impracticable, the requirements of paragraphs (a) (1) and (2) of this § 1-1.3076 shall not apply with respect to such component part. In such cases, if the clause is included in the invitation for bids for other reasons, there also shall be included in the invitation a statement identifying either the component parts (described by “brand name or equal" descriptions) to which the clause applies or those to which it does not apply. This paragraph (b) also applies to accessories related to an end item where a “brand name or equal” purchase description of the accessories is a part of the description of an end item.

(c) When an invitation for bids contains “brand name or equal” purchase descriptions, bidders who offer brand name products referenced in such descriptions shall not be required to furnish bid samples of the referenced brand name products; however, invitations for bids may require the submission of bid samples in the case of bidders offering “or equal” products. 129 FR 10104. July 24, 1964, as amended at 38 FR 24210, Sept. 6, 1973)

§ 1-1.307-7 Bid evaluation and award,

"brand name or equal” descriptions. (a) Bids offering products which differ from brand name products referenced in a “brand name or equal” purchase description shall be considered for award where the contracting officer determines in accordance with the terms of the clause in 81_1 3076(a)(2) that the offered products meet fully the salient characteristics requirements listed in the invitation. Bids shall not be rejected because of minor differences in design, construction, or features which do not affect the suitability of the products for their intended use.

(b) Award documents shall identify, or incorporate by reference an identification of, the specific products which the contractor is to furnish. Such identification shall include any brand name and/or make or model number, descriptive material, and any modifications of brand name products specified in the bid. Included in this requirement are those instances where: (1) the description of the end item contains “brand name or equal” purchase descriptions or component parts or of accessories related to the end item and (2) the clause in § 1-1.307-6(a)(2) was applicable to such component parts or accessories (see § 1-1.307-6(b)). (29 FR 10104, July 24, 1964, as amended at 38 FR 24211, Sept. 6, 1973)

§ 1-1.307–8 Procedure for negotiated pro

curements and small purchases. (a) The policies and procedures prescribed in $$ 1-1.307-6 and 1-1.307-7 for formally advertised procurements shall be generally applicable to negotiated procurements.

(b) The clause set forth in § 1-1.3076(a)(2) may be adapted for use in negotiated procurements. If use of the clause is not practicable (as may be the case in exigency purchases), suppliers shall be suitably informed that proposals offering products different from the products referenced by brand name will be considered if the contracting officer determines that the offered products meet fully the salient characteristics requirements of the solicitation.

(c) In small purchases within open for the information solicited; but such market limitations, such policies and statement does not prohibit the allowprocedures shall be applicable to the ance, in accordance with § 1-15.205-3, extent practicable.

of the cost of preparing such quota(29 FR 10104, July 24, 1964, as amended at

tions. 38 FR 24211, Sept. 6, 1973]

8 1-1.315 Use of liquidated damages provi. § 1-1.307–9 Inspection and acceptance.

sions in procurement contracts. Inspection and acceptance of deliv- 81-1.315-1 General. eries shall be made on the basis of the

This § 1-1.315 prescribes: (a) Policy item described in the notice of award

which shall govern executive agencies and/or contract.

in the use of liquidated damages provi88 1-1.308—1-1.310 [Reserved)

sions in contracts for supplies and

services, including construction, en§ 1-1.311 Priorities, allocations, and allot tered into by formal advertising or by ments.

negotiation, and (b) a provision which In the interest of maintaining a

shall be inserted in contracts for supminimum priorities and allocations

plies and services, other than construcsystem as a mobilization preparedness

tion, when liquidated damages are measure, agencies shall require con stipulated. tractors to use ratings and allotment

§ 1-1.315-2 Policy. authority to support defense needs to the extent required by regulations of

(a) Liquidated damages provisions the Business and Defense Services Ad may be used only where both: (1) The ministration, Department of Com time of delivery or performance is merce.

such an important factor in the award

of the contract that the Government § 1-1.312 [Reserved)

may reasonably expect to suffer

damage if the delivery or performance § 1-1.313 Records of contract actions.

is delinquent, and (2) the extent or Each contract file should contain amount of such damage would be diffidocumentation of actions taken with cult or impossible of ascertainment or respect to each contract, including proof. final disposition. To the extent that (b) In making decisions as to whethretained copies of documents do not er liquidated damages provisions are represent all actions taken, suitable to be used, consideration should be memoranda or a summary statement given to their probable effect on such of such undocumented actions should matters as pricing, competition, and be prepared promptly and be retained the costs and difficulties of contract in the contract file.

administration, as well as the avail

ability of provision elsewhere in the 8 1-1.314 Solicitations for informational

contract for recovery of excess costs in or planning purposes."

termination cases. It is the general policy of the Gov (c) The rate of liquidated damages ernment to solicit bids, proposals, or stipulated must be reasonable in relaquotations only where there is a defi- tion to anticipated damages, considnite intention to award a contract. ered on a case-by-case basis, since liqHowever, in some cases requests for in uidated damages fixed without any formational or planning purposes may reasonable reference to probable dambe justified. In such cases the request ages may be held to be not compensashall clearly state its purpose, explain tion for anticipated damages caused by ing that the Government does not delay, but a penalty and therefore unintend to award a contract on the enforceable. basis of the request, or otherwise pay (d) Where a liquidated damages pro

vision is included in a contract and a 1 See Temporary Regulation 63 in the ap

basis for termination for default pendix to Chapter 1 for temporary changes exists, appropriate action should be to § 1-1.314.

taken expeditiously by the Govern

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ment to obtain performance by the contractor or to exercise its right to terminate as provided in the contract. If delivery or performance is desired after termination for default, efforts must be made to obtain either delivery or performance elsewhere within a reasonable time. Efficient administration of contracts containing liquidated damages provisions is imperative to prevent undue loss to defaulting contractors and to protect the interests of the Government.

(e) Whenever any contract includes a provision for liquidated damages for delay, the Comptroller General, on the recommendation of the head of the agency concerned, is authorized and empowered, by law, to remit the whole or any part of such damages as in his discretion may be just and equitable.

which would relieve him from liability for excess costs as provided in paragraph (c) of this clause.

(b) Contracts for construction. Liquidated damages provisions for construction contracts are contained in the Termination for Default-Damages for Delay-Time Extensions clauses of both Standard Form 19, Invitation, Bid, and Award (Construction, Alteration or Repair), and Standard Form 23A, General Provisions (Construction Contract). To make such provisions operative, an appropriate rate(s) of liquidated damages (determined pursuant to § 1-1.315-2) must be stipulated in the invitation for bids. § 1-1.316 s

Time of delivery or performance. § 1-1.316-1 Scope and applicability.

This § 1-1.316 prescribes policy and procedure regarding requirements as to time for delivery or performance in contracting for personal property or nonpersonal services. This section does not, however, apply to contracts for construction.

§ 1-1.315-3 Contract provisions.

(a) Contracts for supplies or services. When a liquidated damages provision is to be used in a contract which is for supplies or services and which includes Standard Form 32, General Provisions (Supply Contract), the following provision shall be inserted in the invitation for bids and an appropriate rate(s) of liquidated damages (determined pursuant to § 1-1.315-2) shall be stipulated:

LIQUIDATED DAMAGES Article 11(f) of Standard Form 32, Gener al Provisions (Supply Contract), is redesignated as Article 11(g) and the following is inserted as Article 11(f):

(f)(i) In the event the Government exercises its right of termination as provided in paragraph (a) above, the Contractor shall be liable to the Government for excess costs as provided in paragraph (b) above and, in addition, for liquidated damages, in the amount set forth elsewhere in this contract, as fixed, agreed, and liquidated damages for each calendar day of delay, until such time as the Government may reasonably obtain delivery or performance of similar supplies or services.

(ii) If the contract is not so terminated, notwithstanding delay as provided in paragraph (a) above, the Contractor shall continue performance and be liable to the Gov. ernment for such liquidated damages for each calendar day of delay until the supplies are delivered or services performed.

(iii) The Contractor shall not be liable for liquidated damages for delays due to causes

§ 1-1.316-2 General.

(a) The time of delivery or of performance is an important element of a contract and must be clearly set forth in invitations for bids and requests for proposals. Time schedules for delivery or performance shall be designed to meet the requirements of the particular procurement, all relevant factors considered (see § 1-1.316-3), and must be realistic. Schedules which are unreasonably tight or difficult of attainment tend to restrict competition, are inconsistent with small business policies, and may result in higher contract prices. Therefore, before issuing an invitation for bids or request for proposals, the contracting officer shall question any delivery or performance schedule which appears unrealistic and, if necessary, initiate action to make appropriate adjustments.

(b) Where timely delivery or performance is unusually important to the Government, a liquidated damages provision may be used as provided for in § 1-1.315.

(c) Invitations for bids and requests for proposals shall, when appropriate, inform bidders or offerors of the basis on which their bids or proposals will be evaluated with respect to time of delivery or performance.

§ 1-1.316-3 Factors to be considered.

Factors to be considered in establishing delivery or performance schedules may include one or more of the following:

(a) Urgency of need for the property or services.

(b) Production time due to quantity, complexity of design, etc.

(c) Market conditions.
(d) Transportation time.
(e) Industry practices.

(f) Capabilities of small business concerns.

(g) Time for obtaining and evaluating bids or offers, and for awarding contracts.

(h) Time for contractors to comply with any conditions precedent to performance.

(i) Time for the Government to perform its obligations under the contract (e.g., furnishing of Government property to the contractor, approval or preproduction samples, and inspection).

dates (see (a)(1) of this $ 1-1.316-4), invitations for bids shall include one of the following provisions:

(1) The foregoing delivery requirements are based on the assumption that the Government will make award by (procuring activity insert calendar date). Each delivery date in the delivery schedule set forth herein will be extended by the number of calendar days after the above date that the contract is in fact awarded. Attention is directed to paragraph 8(d) of the Terms and Conditions of the Invitation for Bids, which provides that a written award mailed or otherwise furnished to the successful bidder results in a binding contract. Therefore, in computing the available time for performance, the bidder should take into consideration the time required for notice of award to arrive through the ordinary mails.

(2) The foregoing delivery requirements are based on the assumption that the successful bidder will receive that notice of award by (procuring activity insert calendar date). The Government will extend each delivery date in the delivery schedule set forth herein by the number of calendar days after the above date that the contractor receives notice of award, if the contractor promptly acknowledges such receipt.

(c) Where the delivery schedule is based on the date of contract (see (a)(2) of this § 1-1.316-4), the invitations for bids shall include the following provision:

8 1-1.316-4 Terms.

(a) Delivery schedules may be expressed in terms of:

(1) Specific calendar dates (e.g., on or before July 1, 1960);

(2) Specified periods from date of contract (i.e., from date of award or acceptance by the Government, or from date shown on contract document as effective date of contract); or

(3) Specified periods from date of receipt by contractor of notice of award or acceptance by the Government (including notice by receipt of contract document executed by the Government). The full period which the Government holds out as being available for contract performance should not be curtailed to the prejudice of the contractor by delay in giving notice of award. Accordingly, one of the provisions in (b) or (c) of this § 1-1.316-4 shall be used in advertised procurements and may be suitably modified and used as appropriate in negotiated procurements.

(b) Where the delivery schedule is expressed in terms of specific calendar

Attention is directed to paragraph 8(d) of the Terms and Conditions of the Invitation for Bids, which provides that a written award mailed or otherwise furnished to the successful bidder results in a binding contract. Any award hereunder, or a preliminary notice thereof, will be mailed or otherwise furnished to the bidder the day the award is dated. Therefore, in computing the time available for performance, the bidder should take into consideration the time required for the notice of award to arrive through the ordinary mails. However, a bid offering delivery based on date of receipt by the contractor of the contract or notice of award (rather than contract date) will be evaluated by adding the maximum number of days normally required for delivery of the award through the ordinary mails. If, as so computed, the delivery date offered is later than the delivery date required in the invitation, the bid will be considered nonresponsive and rejected.

(d) Where the delivery schedule is based on the date of the contract (see (a) (2) and (c) of this § 1-1.316-4), the contract, notice of award, acceptance

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