of proposal, or other contract document executed by the Government shall be mailed or otherwise furnished the contractor on the date shown thereon.

(e) Where the delivery schedule is based on date of receipt by the contractor of notice of award (see (a)(3) of this § 1-1.316-4), or where it is expressed in terms of specific calendar dates on the assumption that notice of award will be received by a specified date (see (b)(2) of this § 1-1.316-4), the notice of award, acceptance of proposal, or other contract document executed by the Government shall be sent by certified mail, return receipt requested, or by any other appropriate method which will provide evidence of the date of receipt.

(f) When the required delivery schedule in the invitation for bids is based on date of the contract (see (a)(2) of this § 1-1.316-4), a bid which offers delivery based on date of receipt by the contractor of the contract or notice of award (see (a)(3) of this § 11.316-4):

(1) Shall be evaluated by adding the maximum number of days normally required for delivery of the notice of award through the ordinary mails; and

(2) If the delivery date offered by the bid (computed in accordance with (f)(1) of this § 1-1.316-4) is later than the delivery date required in the invitation for bids, the bid shall be considered nonresponsive and rejected; but

(3) If award is made under (f)(1) of this § 1-1.316-4, under the terms of the contract the delivery date will be computed on the basis of the number of days after actual receipt by the contractor of the notice of award as specified in the bid.

§ 1-1.316-5 Time of delivery clauses.

(a) Examples of time of delivery clauses for invitations for bids are set forth below. They may be modified, or other clauses may be used, to state particular delivery requirements or any special procedures to be used in the evaluation, rejection, or award process as regards time of delivery. These clauses also may be suitably modified for use in negotiated procurements where appropriate.

Bids offering delivery of each quantity within the applicable delivery period specified above will be evaluated equally as regards time of delivery. Bids offering delivery of a quantity under such terms or conditions that delivery will not clearly fall within the applicable delivery period specified above will be considered nonresponsive and will be rejected. Where a bidder offers an earlier delivery schedule than that called for above, the Government reserves the right to award either in accordance with the required schedule or in accordance with the schedule offered by the bidder. If the bidder offers no other delivery schedule, the delivery schedule stated above shall apply.

*Contracting officer shall insert the appropriate one of the following phrases, in both of the indicated spaces:

(1) "On (on or before) the date(s) specified below." (2) "Within the number of days stated below after the date of contracts."

(3) "Within the number of days stated below after the date of receipt of a written notice of award." (4) "Within the periods specified below." (NOTE: When this phrase is inserted, the wording "during the month(s) of or "not sooner than and not later than should be used to specify the periods.)

(c) The following clause may be used where delivery by a certain time is desired although not essential, but delivery by a specified later time is necessary to meet the Government's requirements:

TIME OF DELIVERY

Delivery is desired by the Government in accordance with the following schedule:

*Contracting officer shall insert the appropriate one of the following phrases, in each of the three indicated spaces: (1) "On (on or before) the date(s) specified below." (2) "Within the number of days stated below after date of contract."

(3) "Within the number of days stated below after the date of receipt of a written notice of award."

(4) "Within the periods specified below."

(NOTE: When this phrase is inserted, the wording "during the month(s) of or "not sooner than and not later than should be used to specify the periods.)

§ 1-1.317 Noncollusive bids and proposals.

(a) In order to promote full and free competition for Government contracts, the certification prescribed by this section shall be included in all: (1) Invitations for bids and (2) requests for proposals or quotations. Exceptions to this requirement include the

following: Small purchases in accordance with Subpart 1-3.6, requests for technical proposals in connection with two-step formal advertising involving firm fixed-price contracts and fixedprice contracts with escalation, and contracts for utility services where rates are set by law or regulation.

CERTIFICATE OF INDEPENDENT PRICE
DETERMINATION

(a) By submission of this bid or proposal, each bidder or offeror certifies, and in the case of a joint bid or proposal each party thereto certifies as to its own organization, that in connection with this procurement:

(1) The prices in this bid or proposal have been arrived at independently, without consultation, communication, or agreement, for the purpose of restricting competition, as to any matter relating to such prices with any other bidder or offeror or with any competitor;

(2) Unless otherwise required by law, the prices which have been quoted in this bid or proposal have not been knowingly disclosed by the bidder or offeror and will not knowingly be disclosed by the bidder or offeror prior to opening, in the case of a bid, or prior to award, in the case of a proposal, directly or indirectly to any other bidder or offeror or to any competitor; and

(3) No attempt has been made or will be made by the bidder or offeror to induce any other person or firm to submit or not to submit a bid or proposal for the purpose of restricting competition.

(b) Each person signing this bid or proposal certifies that:

(1) He is the person in the bidder's or offeror's organization responsible within that organization for the decision as to the prices being bid or offered herein and that he has not participated, and will not participate, in any action contrary to (a)(1) through (a)(3) above; or

(2)(i) He is not the person in the bidder's or offeror's organization responsible within that organization for the decision as to the prices being bid or offered herein but that he has been authorized in writing to act as agent for the persons responsible for such decision in certifying that such persons have not participated, and will not participate, in any action contrary to (a)(1) through (a)(3) above, and as their agent does hereby so certify; and (ii) he has not participated, and will not participate, in any action contrary to (a)(1) through (a)(3) above.

(c) This certification is not applicable to a foreign bidder or offeror submitting a bid or proposal for a contract which requires performance or delivery outside the United States, its possessions, and Puerto Rico.

(d) A bid or proposal will not be considered for award where (a)(1), (a)(3), or (b) above has been deleted or modified. Where (a)(2) above has been deleted or modified, the bid or proposal will not be considered for award unless the bidder or offeror furnishes with the bid or proposal a signed statement which sets forth in detail the circumstances of the disclosure and the head of the agency, or his designee, determines that such disclosure was not made for the purpose of restricting competition.

(b) The fact that a firm: (1) Has published pricelists, rates, or tariffs covering items being procured by the Government, (2) has informed prospective customers of proposed or pending publication of new or revised pricelists for such items, or (3) has sold the same items to commercial customers at the same prices being offered the Government does not constitute, without more, a disclosure within the meaning of paragraph (a)(2) of the Certificate.

(c) It is not required that a separate written authorization be given to the signer of the bid or proposal for each procurement involved where the signer makes the certification provided in paragraph (b)(2) of the Certificate: Provided, That with respect to any blanket authorization given: (1) The procurement to which the Certificate applies is clearly within the scope of such authorization, and (2) the person giving such authorization is the person responsible within the bidder's or offeror's organization for the decision as to the prices being bid or offered at the time the Certificate is made in a particular procurement.

(d) After the execution of an initial certificate and the award of a contract in connection therewith, the contractor need not submit additional certificates in connection with proposals submitted on "work orders" or similar ordering instruments issued pursuant to the terms of that contract, where the government's requirements cannot be met from another source.

(e) The authority to make the determination described in paragraph (d) of the above certification shall not be delegated to an official below the level of the head of a procuring activity of the agency.

(f) Where a certification is suspected of being false or there is indication of collusion, the matter shall be proc

The Contract Disputes Act of 1978 (Pub. L. 95-563; November 1, 1979, 41 U.S.C. 601-613) provides a statutory basis for the resolution of disputes under Government contracts. It is the Government's policy, consistent with that Act, to try to resolve all disputes by mutual agreement at the contracting officer's level without litigation. In appropriate circumstances, before issuance of a contracting officer's decision, informal discussions between the parties, conducted to the extent feasible by individuals who have not participated substantially in the matter in dispute, could aid in the resolution of differences by mutual agreement and should be considered. The contracting officer is authorized (within any specific limitations in his or her warrant) to settle all disputes relating to a contract containing the Disputes clause prescribed by § 1-1.318-7.

[45 FR 10789, Feb. 19, 1980]

§ 1-1.318-2 Applicability of Act and exceptions.

(a) Applicability. (1) Unless otherwise specifically provided herein, the Contract Disputes Act of 1978 applies to any express or implied contract entered into by an executive agency for the procurement of:

(i) Property, other than real property in being,

(ii) Services, or

(iii) Construction, alteration, repair, or maintenance of real property.

1 See Temporary Regulation 55 in the Appendix to Chapter 1 for temporary changes to § 1-1.318.

(2) The contracts to which the Act applies include the contracts of:

(i) The nonappropriated fund activities described in 28 U.S.C. 1346 and 1491.

(ii) The Tennessee Valley Authority which contain a disputes clause requiring that a contract dispute be resolved through an agency administrative process (see exception in § 1-1.3182(b)).

(3) The Act also applies to certain kinds of relief, such as alleged legal entitlement to revision or reformation for mutual mistake, which formerly were: (i) Available within an agency only under Pub. L. 85-804 (50 U.S.C. 1431-1435) and (ii) not within the contracting officer's authority. Contracting officers should obtain legal advice regarding their authority to settle or decide these claims.

(4) Maritime contracts are subject to the Act to the extent provided in 41 U.S.C. 603.

(b) Exceptions. The Act does not apply to:

(1) Contracts with a foreign government or an agency thereof, or with an international organization or a subsidiary body thereof, if the head of the agency determines that application of the Contract Disputes Act of 1978 to the contract would not be in the public interest;

(2) Any claim or dispute for penalties or forfeitures prescribed by statute or regulation which another Federal agency is specifically authorized to administer, settle, or determine;

(3) Any claim involving fraud;

(4) Requests for relief under Pub. L. 85-804 because they are not considered claims under the Act (see § 11.318-2(a)); or

(5) Contracts of the Tennessee Valley Authority for the sale of fertilizer or electric power or related to the conduct or operation of the electric power system.

[45 FR 10789, Feb. 19, 1980]

decision on the claim (see § 1-7.10212).

[45 FR 10789, Feb. 19, 1980]

§ 1-1.318-4 Contracting officer's decision.

(a) When a claim cannot be satisfied or settled by agreement and a decision on the claim is necessary, the contracting officer shall:

(1) Review the facts pertinent to the claim,

(2) Secure assistance from legal and other advisors, and

(3) Coordinate with the contract administration office or contracting office, when appropriate.

(b) The contracting officer shall furnish a copy of the decision to the contractor by certified mail-return receipt requested or any other method that provides evidence of receipt. The decision shall include:

(1) A paragraph substantially as follows:

This is the final decision of the contracting officer. This decision may be appealed to (insert the address of the cognizant Board of Contract Appeals). If you decide to make such an appeal, you must mail or otherwise furnish written notice thereof to the Board of Contract Appeals within 90 days from the date you receive this decision. A copy thereof shall be furnished to the contracting officer from whose decision the appeal is taken. The notice shall indicate that an appeal is intended, should reference this decision, and identify the contract number. Instead of appealing to the Board of Contract Appeals, you may bring an action directly to the U.S. Court of Claims within 12 months of the date you receive this decision

(2) A description of the claim or dispute;

(3) A reference to pertinent contract provisions;

(4) A statement of the factual areas of agreement or disagreement;

(5) A statement of the contracting officer's decision, with supporting rationale;

(6) A notification that the small claims procedure of the cognizant Board of Contract Appeals is applicable at the sole election of the contractor in the event the amount in dispute as a result of the final decision is $10,000 or less; and

(7) A notification that the accelerated procedure of the cognizant Board of Contract Appeals is applicable at the sole election of the contractor in the event the amount in dispute as a result of the final decision is $50,000 or less.

(c) The contracting officer shall issue the decision within the following time limitations:

(1) For submitted claims not exceeding $50,000, within 60 days after the Contracting Officer receives a written request for a decision.

(2) For submitted certified claims exceeding $50,000, within 60 days after the Contracting Officer receives a certified claim. However, if a decision is not to be issued within 60 days, the contracting officer shall notify the contractor, within the 60 days, of the time within which the contracting officer will make the decision. The decision of the contracting officer on submitted claims shall be issued within a reasonable time. The reasonableness of this time period will depend on the size and complexity of the claim and the adequacy of the contractor's supporting data and any other relevant factors.

(d) (1) Within 30 days of receipt of an appeal, or notice that an appeal has been filed, the contracting officer shall assemble and transmit to the cognizant Board (through the agency's General Counsel) an appeal file consisting of all documents pertinent to the appeal, including:

(i) The decision from which the appeal is taken;

(ii) The contract, including specifications and pertinent amendments, plans, and drawings;

(iii) All correspondence between the parties relevant to the appeal, including the letter or letters of claim in response to which the decision was issued;

(iv) Transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal with the Board; and

(v) Any additional information considered relevant to the appeal.

(2) Documents in the appeal file may be originals or legible facsimiles

or authenticated copies, and shall be arranged in chronological order where practicable, numbered sequentially, tabbed, and indexed to identify the contents of the file.

(3) Within the same 30 days as specified for furnishing the appeal file to the cognizant Board, the contracting officer shall also furnish a copy of the appeal file to the appellant. However, the contracting officer may substitute a list of specific contractual documents in place of the documents themselves as required in paragraph (d)(1)(ii) of this section.

(4) Upon request by either party, the Board may waive the requirement to furnish to the other party copies of bulky, lengthy, or out-of-size documents in the appeal file when inclusion would be burdensome. At the time a party files with the Board a document as to which such a waiver has been granted, he or she shall notify the other party that the document or a copy is available for inspection at its own offices or at the offices of the Board.

(e) The amount determined payable under the decision, less any portion already paid, normally should be paid without awaiting contractor action concerning appeal. The payment shall be without prejudice to the rights of either party.

[45 FR 10789, Feb. 19, 1980]