(h) Disposition of samples. Samples. if not destroyed in testing, shall be returned to bidders at their request and expense, unless otherwise specified in the invitation for bids.

[29 F.R. 10141, July 24, 1964, as amended at 29 F.R. 14494, Oct. 22, 1964; 80 F.R. 18110. Dec. 28, 1965]

§ 1-2.202-5

Descriptive literature.

(a) Definition. As used in this § 1-2.202-5, the term "descriptive literature" means information, such as cuts, Illustrations, drawings and brochures, which show the characteristics or construction of a product or explain its operation, furnished by a bidder as a part of his bid to describe the products offered in his bid. The term includes only information required to determine acceptability of the product, and excludes other information such as that furnished in connection with the qualifications of a bidder or for use in operating or maintaining equipment.

(b) Policy. Bidders shall not be required to furnish descriptive literature as a part of their bids unless the contracting agency deems that such literature is needed to enable it to determine before award whether the products offered meet the specification requirements of the invitation for bids and to establish exactly what the bidder proposes to furnish. It may be appropriate to require descriptive literature in the procurement of highly technical or specialized equipment. or where considerations such as design or style are important in determining acceptability of the product.

(c) Justification. The reasons why acceptable products cannot be procured without the submission of descriptive literature shall be set forth and filed in the case file, except where such submission is required by the formal specifications (Federal. military. departmental etc.) applicable to the procurement.

(d) Requirements of invitation for bids. When descriptive literature is required. the invitation for bids shall clearly state what descriptive literature is to be furnished, the purpose for which It is required, the extent to which it will be considered in the evaluation of bids. and the rules which will apply if a bidder fails to furnish it before bid opening or If the literature furnished does not comply with the requirements of the Invitation for bids. Where descriptive literature is not considered necessary and a

waiver of the literature requirements of a specification has been authorized, a statement shall be included in the invitation for bids that notwithstanding the requirements of the specifications, descriptive literature will not be required.

(1) Except as provided in paragraph (d) (2) of this section, if bidders are to furnish descriptive literature as a part of their bids, a provision substantially as follows (modified, if appropriate, in accordance with paragraph (e)(1) of this section) shall be included in the invitation for bids:

REQUIREMENT FOR DESCRIPTIVE LITERATURE

(a) Descriptive literature as specified in this Invitation for Bids must be furnished as a part of the bid and must be received before the time set for opening bids. The literature furnished must be identified to show the item in the bid to which it pertains The descriptive literature is required to establish, for the purposes of bid evaluation and award, details of the products the bidder proposes to furnish as to [* ].

(b) Failure of descriptive literature to show that the product offered conforms to the specifications and other requirements of this Invitation for Bids will require rejection of the bid. Failure to furnish the descriptive literature by the time specified in the Invitation for Bids will require rejection of the bid, except that if the material is transmitted by mail and is received late, it may be considered under the provisions for considering late bids, as set forth elsewhere in this Invitation for Bids.

*Contracting officer shall insert significant elements such as design, materials, components, or performance characteristics, or methods of manufacture, construction, assembly, or operation, as appropriate.

(2) When brand name or equal purchase descriptions are used, the requirements of this § 1-2.202-5 are met by inserting in the invitation for bids the brand names provision set forth in § 1-1.307-6.

(e) Waiver of requirements for descriptive literature. (1) The provision prescribed in paragraph (d) (1) of this section may be modified to provide that the requirements for furnishing descriptive literature may be waiver as to a particular bidder if (i) the bidder states in his bid that the product he is offering to furnish is the same as a product previously or currently being furnished to the procuring activity and (ii) it is determined by the contracting officer that such product complies with the specification requirements of the current invitation for bids. When provision is to be made for such waiver, the invitation for

bids provision in paragraph (d) (1) of this section shall be modified by adding substantially teh following at the end of paragraph (b) thereof:

However, the requirements for furnishing descriptive literature may be waiver as to a bidder if (1) the bidder states in his bid that the product he is offering to furnish is the same as a product he has previously furnished to the [* | under a prior contract and the bidder identifies the contract, and (2) the Contracting Officer determines that such product meets the requirements of this Invitation for Bids.

*Contracting officer shall insert "procuring activity" or such other designation as may be provided by agency procedures.

(2) If the invitation for bids contains a provision for waiver in accordance with paragraph (e) (1) of this section, a bidder may submit his bid either on the basis of the descriptive literature to be furnished or on the basis of a previously procured product. If he elects to submit his bid on one basis, he is precluded from having his bid considered on the alternative basis after bids are opened.

(1) Unsolicited descriptive literature. If the furnishing of descriptive literature is not required by the invitation for bids. but such literature is furnished with a bid, it will not be considered as qualifying the bid, and will be disregarded, unless it is clear from the bid or accompanying papers that it was the bidder's intention so to qualify the bid.

(g) See § 1-2.404-4 for requirements with respect to restrictions on the public disclosure of descriptive literature submitted by a bidder. § 1-2.202-6

Final review of invitations

for bids. The contracting officer shall ensure that each invitation for bids is thoroughly reviewed prior to its issuance to detect and correct discrepancies or ambiguities which could limit competition or result in the receipt of nonresponsive bids. [40 FR 2811, Jan. 16, 1975]

§ 1-2.203 Methods of soliciting bids. § 1-2.203-1 Mailing or delivering to prospective bidders.

Invitations for bids or pre-invitation notices (see § 1-2.205-4(c)) shall be mailed (or delivered) to a sufficient number of prospective bidders so as to elicit adequate competition. Invitations for bids may be mailed for informational purposes to Government agencies, including procurement information offices,

or to such other organizations as may be authorized by agency procedures.

§ 1-2.203-2 Displaying in public places.

Copies of unclassified invitations for bids shall be displayed at the procuring office and/or at other appropriate public places.

§ 1-2.203-3 Publicity in newspapers and trade journals.

(a) Free publicity. A brief announcement of the proposed procurement, or copies of unclassified invitations for bids, may be made available for free publication to newspapers and to trade journals and magazines.

(b) Paid advertisements. Paid advertisements in newspapers and trade Journals shall be contracted for in accordance with agency procedures pursuant to 5 U.S.C. 302; 44 U.S.C. 321, 322. and 324; and Title 7, Chapter 5200, General Accounting Office Policy and Procedures Manual for Guidance of Federal Agencies.

§ 1-2.203-4 Synopses of invitations for bids.

Synopses of invitations for bids shall be prepared and publicized in the Commerce Business Daily in accordance with § 1-1.1003. Requests for invitations for bids received by the procuring activity as a result of publicizing shall be honored to the extent that copies are available. The names of prospective bidders who are furnished invitations for bids in response to their requests shall be added to the bidders mailing list for the particular procurement. However, when the request is made by a person or an organization known not to be a prospective bidder, no entry shall be made on the bidders mailing list.

[40 FR 2811, Jan. 16, 1975]

§ 1-2.204 Records of invitations for bids and records of bids.

(a) Each agency shall retain a record of every invitation for bids issued by it and of each abstract or record of bids. Agency purchasing offices shall review this record at the time of each subsequent procurement action for the same and, when appropriate, similar items, tc ensure that the information available in the file is utilized in connection with the new procurement.

(b) The file of the invitation for bids shall show the distribution which was made and the date thereof. The names

and addresses of prospective bidders requesting the invitation for bids who were not included on the original solicitation list shall be added and made a part of the record.

[40 FR 2811, Jan. 16, 1975]

§ 1-2.205
§ 1-2.205-1 Establishment of lists.

Bidders mailing lists.

(a) Bidders mailing lists shall be established by procuring activities to assure access to adequate sources of supply and service and to obtain meaningful competition except where the requirements of the procuring activity can be obtained within the local trade area through ultilization of simplified small purchase procedures. (See Subpart 13.6.) Procuring activity bidders mailing lists may be established as (1) a central list for use by all purchasing offices within the procuring activity or (2) local lists maintained by each purchasing office.

(b) All eligible and qualified concerns which have submitted bidders mailing list applications, or which the procuring activity considers capable of filling the requirements of a particular procurement, shall be placed on the appropriate bidders mailing list. Planned producers under the Industrial Readiness Planning Program shall be included on the bidders mailing list for their planned items. The issuance of notices to new prospective suppliers that they have been added to the bidders mailing list shall be handled in accordance with agency procedures. The issuance of a solicitation within a reasonable time may be considered appropriate notification. Those suppliers not meeting the criteria for placement on the bidders mailing list shall be notified accordingly.

(c) Bidder's Mailing List Application (Standard Form 129) shall be used for obtaining information needed, as prescribed in § 1-16.802, in the establishment and maintenance of bidders mailing lists [29 FR 10146, July 24, 1964, as amended at 29 FR 18477, Dec. 29, 1964; 40 FR 2811, Jan. 16, 1975]

or items involved in that invitation or notice. For any case where this procedure will ultimately result in very limited bidders mailing lists, the contracting officer should request an explanation from the concerns that did not respond to determine the reason for the failure to respond before deciding to remove the firms from the bidders mailing list.

(b) The names of concerns which have been (1) debarred from entering into Government contracts, or (2) otherwise determined to be ineligible to receive an award of a Government contract, shall be removed from the bidders mailing lists to the extent required by such debarment or determination of ineligibility.

[29 FR 10141, July 24, 1964, as amended at 40 FR 2811, Jan. 16, 1975]

§ 1-2.205-3 Reinstatement on bidders mailing lists.

Concerns which have been removed from bidders mailing lists may be reinstated upon written request, by filing a new application on Standard Form 129, by the submission of a bona fide bide, or by requesting an invitation for bids (after publication in the Commerce Business Daily) in accordance with § 12.203-4, above. No concern which is debarred or suspended shall be reinstated during the period of debarment or while suspended.

[40 FR 2811, Jan. 16, 1975] § 1-2.205-4

Excessively long bidders

mailing lists.

(a) General. To prevent excessive administrative costs of a procurement, mailing lists should be used in a way which will promote competition commensurate with the dollar value of the purchase to be made. As much of the mailing list will be used as is compatible with efficiency and economy in securIng adequate competition as required by law. Where the number of bidders on a mailing list is considered excessive in relation to a specific procurement, the list may be reduced by any method consistent with the foregoing, including those described in paragraphs (b) and (c) of this section. The fact that less than an entire mailing list is used shall not in itself preclude furnishing of bidding sets to others upon request therefor, or consideration of bids received from bidders who were not invited to bid.

(b) Rotation of lists. Mailing lists may be rotated, but to do so will require

considerable judgment as to whether the size of the transaction justifies the rotation. Consideration also should be given as to whether time permits utilization of the pre-invitation notice (see § 1-2.2054(c)). In rotating a list, the interests of small business (see § 1-1.702(b) (2)) and the existence of labor surplus areas (see 1-1.802-2(e)) shall be considered. Whenever the rotation method is employed, the successful bidder on the previous procurement for the same or simllar items and those prospective suppliers who have been added to the bidders mailing list since the last procurement shall be solicited. in addition to those bidders comprising that segment of the list selected for use in a particular procurement, except where such action would be precluded by use of the small business total set-aside portion.

(c) Pre-invitation notices. In lieu of Initially forwarding complete bid sets, the procuring activity may send preinvitation notices to concerns on the mailing list. The notice shall (1) specify the date by which bidders should return the notice in order to receive a complete bid set. (2) describe the requirement so as to furnish a complete item description and a condensation of other essential information to provide concerns with an intelligible basis for judging whether they have an interest in the procurement. and (3) expressly notify concerns that if no bid is to be submitted they should advise the issuing office in writing if future Invitations are desired for the type of supplies or services involved. Drawings, plans, and specifications normally will not be furnished with the pre-invitation notice. The return date of the notice must be sufficiently in advance of the mailing date of the invitation for bids to permit an accurate estimate of the number of bid sets required. Bid sets will be sent to concerns which request them. This procedure is particularly suitable to major procuring activities where lengthy invitations for bids and long bidder's lists are common.

(29 FR. 10146. July 24, 1964, as amended at 29 F.R. 18477. Dec. 29, 1964] § 1-2.205-5 lists.

Release of bidders mailing

(a) [Reserved]

(b) When invitations for bids for construction contracts have been issued. trade journals, prospective subcontractors, material suppliers, and others having a bona fide interest in such informa

(a) If after issuance of invitations for bids but before the time set for opening of bids it becomes necessary to make changes in quantities, specifications, delivery schedules, opening dates, etc., or to correct a defective or ambiguous invitation, such changes shall be accomplished by issuance of an amendment to the invitation for bids. The amendment shall be sent to each concern to whom the invitation for bids has been furnished and shall be displayed in the bid room.

(b) Each amendment issued to an invitation for bid shall:

(1) Be serially numbered, using a separate series of numbers for each invitation for bids concerned.

(2) Include the number of the invitation for bids concerned.

(3) Clearly state the changes made in the invitation for bids and the extension of the opening date, if any. If no extension of the time set for opening is involved, the amendment shall so state

(4) Include instructions to bidders for acknowledging receipt of the amendment and information concerning the effect of failure to acknowledge or return the amendment.

(c) Before issuing an amendment to an invitation for bids, the period of time remaining until the time set for opening and the need for extending this period by postponing the time set for opening must be considered. Where only a short time remains before the time set for opening, consideration should be given to notifying bidders of an extension of time by telegraph or telephone Such notification should be confirmed in the amendment.

In suficient time to permit all prospective bidders to consider such information In submitting or modifying their bids. § 1-2.208 Cancellation of invitations before opening.

(a) Cancellation of an invitation for bids usually involves the loss of time, effort, and money spent by the Government and bidders in carrying the procurement process up to the point of cancellation Invitations for bids should not be canceled unless cancellation is clearly in the public interest, such as where there is no longer a requirement for the material or service or where amendments to the invitation would be of such magnitude that a new invitation is desirable Where an invitation is canceled. bids which have been received shall be returned unopened to the bidders and a notice of cancellation shall be sent to all prospective bidders to whom invitations for bids were issued.

(b) The notice of cancellation shall identify the invitation for bids; briefly explain the reason the invitation is being canceled: and. where appropriate, assure prospective bidders that they will be given an opportunity to bid on any resolicitation of bids or any future requirements for the type of material or services involved. The cancellation shall be recorded in accordance with § 1-2.403 § 1-2.209 Qualified products. See Subpart 1-1.11.

Subpart 1-2.3-Submission of Bids § 1-2.301 Responsiveness of bids.

(a) To be considered for award, a bid must comply in all material respects with the invitation for bids so that, both as to the method and timeliness of submission and as to the substance of any resulting contract, all bidders may stand on an equal footing and the integrity of the formal advertising system may be maintained.

(b) Telegraphic bids shall not be considered unless permitted by the invita tion for bids. The term "telegraphic bids" includes bids or proposals submitted by telegram or by mailgram.

(c) Bids should be filled out, executed. and submitted in accordance with the instructions which are contained in the invitation for bids. If a bidder uses its own bid form or a letter to submit a bid the bid may be considered only if (1) the bidder accepts all the terms and condi

tions of the invitation, and (2) award on the bid would result in a binding contract. the terms and conditions of which do not vary from the terms and conditions of the invitation.

129 FR 10141, July 24, 1961, as amended at 42 FR 33737, July 1, 1977]

EFFECTIVE DATE NOTE: Section 1-2.301(b) was revised by adding the last sentence. The last sentence of paragraph (b) becomes effective Aug. 22, 1977.

§ 1-2.302 Time of bid submission.

Bids shall be submitted so as to be received in the office designated in the invitation for bids not later than the exact time set for opening of bids. Where telegraphic bids are authorized, a telegraphic bid received in such office by telephone from the receiving telegraph office not later than the time set for opening of bids shall be considered if such bid is confirmed by the telegraph company by sending a copy of the telegram which formed the basis for the telephone call.

§ 1-2.303 Late bids. § 1-2.203-1

General.

Bids received at the office designated in the invitation for bids after the exact time set for opening of bids are late bids. Late bids shall not be considered for award except as authorized in this § 1-2.303.

§ 1-2.303-2 Consideration for award.

A late bid shall be considered for award only if it is received before award and, (a) if submitted by mail, the circumstances outlined in § 1-2.303-3 are applicable, or (b) if submitted by telegram (where authorized) the circumstances set forth in § 1-2.303-4 are applicable.

[33 F.R. 20041, Dec. 31, 1968] § 1-2.303-3

Mailed bids.

A late bid, modification of bid, or withdrawal of bid shall be considered only if the circumstances set forth in the provision in § 1-2.201(a) (31) are applicable. [38 FR 26914, Sept. 27, 1973]

§ 1-2.303-4 Telegraphic bids.

A late telegraphic bid received before award shall not be considered for award, regardless of the cause of the late receipt, including delays caused by the telegraph company, except for delays due to mishandling on the part of the Government in its transmittal to the office designated in the invitation for