A late hand-carried bid. or any other late bid not submitted by mail or telegram, shall not be considered for award. § 1-2.303-6 Notification to late bidders.

(a) When a late bid is received and it is clear from available information that under § 1-2.303-2 such late bid cannot be considered for award, the contracting officer, or his authorized representative, shall promptly notify the bidder that it was received late and will not be considered (see also § 1-2.303-7). However, when a late bid is transmitted by registered or certified mail and is received before award but it is not clear from available information whether it can be considered, the bidder shall be promptly notified substantially as follows:

the original post office receipt for registered or certified mail showing a date of mailing not later than the fifth calendar day prior to the date specified for opening (e.g.. a bid submitted in response to a solicitation requiring receipt of bids by the 20th of the month must have been mailed by the 15th or earlier).

(b) When a late telegraphic bid is received and it is clear from available information that under § 1-2.303-2 such late bid cannot be considered, the contracting officer, or his authorized representative, shall promptly notify the bidder that his bid was received late and will not be considered (see also § 1-2.303-7).

[38 FR 26914, Sept. 27, 1973]

§ 1-2.303-7 Disposition of late bids.

A late bid which is not for consideration shall be held unopened until after award and then return to the bidder (unless other disposition is requested or agreed to by the bidder). However, an unidentified late bid may be opened solely for purposes of identification as provided in § 1-2.401.

§ 1-2.303-8 Records.

The following shall, if available, be included in the contracting office files with respect to each late bid:

(a) A statement of the date and hour of mailing or filing.

(b) A statement of the date and hour of receipt.

(c) The determination of whether or not the late bid was considered for award, with supporting facts.

(d) A statement of the disposition of the late bid.

(e) The envelope, or other covering, if the late bid was considered for award. § 1-2.304 Modification or withdrawal of

bids.

(a) Bids may be modified or withdrawn by written or telegraphic notice received in the office designated in the invitation for bids not later than the exact time set for opening of bids. A telegraphic modification or withdrawal of a 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 message is confirmed by the telegraph company by sending a copy of the written telegram which formed the basis for the telephone call. Modifications received by telegram (including a record of those telephoned by the telegraph company) shall be sealed in an envelope by a proper official who shall write thereon the date and time of receipt and by whom, the invitation for bid number, and his signature. No information contained therein shall be disclosed before the time set for bid opening. See § 1-2.401 with respect to the receipt and safeguarding of modifications.

(b) A bid may be withdrawn in person by a bidder or his authorized representative, provided his identity is made known and he signs a receipt for the bid, but only if the withdrawal is prior to the exact time set for opening of bids. § 1-2.305 Late modifications and withdrawals.

Modifications of bids and requests for withdrawal of bids which are received in the office designated in the invitation for bids after the exact time set for opening are "late modifications" and "late withdrawals." respectively. A late modification or late withdrawal shall be subject to the rules and procedures applicable to late bids set forth in § 1-2.303. However, a late modification of the oth

erwise successful bid shall be opened at any time it is received: and if in the judgment of the contracting officer it makes the terms of the bid more favorable to the Government, it shall be considered. In the case of late modifications and late withdrawals, the notice set forth in § 1-2.303-6 shall be appropriately modified.

Subpart 1-2.4-Opening of Bids and Award of Contract

§ 1-2.401 Receipt and safeguarding of bids.

(a) All bids (including modifications) received prior to the time set for opening shall be kept unopened, except as stated in § 1-2.401(b), and secure in a locked bid box or other locked receptacle. Prior to bid opening. information concerning the identity and number of bids received shall be made available only to Government employees who have a proper need for such information. When bid samples are submitted, they shall be handled with sufficient care to prevent disclosure of characteristics before bid opening.

(b) Unidentified bids may be opened solely for the purpose of identification and then only by an authorized official. If a sealed bid is opened by mistake, the telegram which formed the basis for the person who opens the bid will immediately write his signature and position title on the envelope and deliver it to the proper official. This official shall immediately write on the envelope an explanation of the opening, the date and time opened, the invitation for bid number, and his signature. Bids opened by mistake or for identification purposes shall be resealed in the envelope and no information contained therein shall be disclosed prior to the public bid opening.

§ 1-2.402 Opening of bids.

(a) The official designated as the bid opening officer shall decide when the time set for bid opening has arrived and shall so declare to those present. All bids received prior to the time set for opening shall then be publicly opened and, when practicable, read aloud to the persons present, and be recorded. If it is impracticable to read the entire bid, as where many items are involved. the total amount bid shall be read, if feasible. The original of each bid shall be carefully safeguarded, particularly until the abstract of bids required by

§ 1-2.403 has been made and its accuracy verified.

(b) Performance of the procedure in § 1-2.402(a) may be delegated to an assistant, but the bid opening officer remains fully responsible for the actions of such assistant.

(c) Examination of bids by interested persons shall be permitted if it does not Interfere unduly with the conduct of Government business. However, original bids shall not be allowed to pass out of the hands of a Government official unless duplicate copies of such bids are not available for public inspection. In such cases, the original bids may be examined by the public only under the immediate supervision of a Government official and under conditions which preclude possibility of a substitution, addition, deletion, or alteration in the bids However, see § 1-2.404-4 with respect to public disclosure of descriptive literature submitted by a bidder on a restrictive basis.

§ 1-2.403 Recording of bids.

The invitation number, bid opening date, general description of the procurement item, names of bidders, prices bid. and any cther information required for bid evaluation, shall be entered in an abstract or record which, except in the case of a classified procurement, shall be available for public inspection. When the items are too numerous to warrant the recording of all bids completely, an entry shall be made of the invitation number, opening date, general description of the procurement items, and the total price bid where definite quantities are involved. The record or abstract shall be completed as soon as practicable after the bids have been opened and read The bid opening officer shall certify the accuracy of the record or abstract. If the invitation for bids is canceled before the time set for bid openings, this fact shall be recorded, together with a statement of the number of concerns invited to bid and the number of bids received. § 1-2.404 Rejection of bids.

§ 1-2.404-1 Cancellation of invitation after opening.

(a) Preservation of the integrity of the competitive bid system dictates that, after bids have been opened, award must be made to that responsible bidder who submitted the lowest responsive bid, unless there is a compelling reason to reject all bids and cancel the invitation.

Every effort shall be made to anticipate changes in a requirement prior to the date of opening and to notify all prospective bidders of any resulting modification or cancellation, thereby permitting bidders to change their bids and preventing unnecessary exposure of bid prices. As a general rule, after opening, an invitation for bids should not be canceled and readvertised due solely to increased requirements for the items being procured Award should be made on the initial invitation for bids and the additional quantity should be treated as a new procurement.

(b) Invitations for bids may be canceled after opening but prior to award, and all bids rejected. where such action is consistent with § 1-2.404-1(a) and the contracting officer determines in writing that cancellation is in the best interest of the Government for reasons such as the following:

(1) Inadequate, ambiguous, or otherwise deficient specifications were cited in the invitation for bids.

(2) The supplies or services are no longer required.

(3) The invitation for bids did not provide for consideration of all factors of cost to the Government, such as cost of transporting Government-furnished property to bidders' plants.

(4) Bids received indicate that the needs of the Government can be satisfied by a less expensive article differing from that on which the bids were invited.

(5) All otherwise acceptable bids received are at unreasonable prices. (See § 1-3.214 concerning authority to negotiate in such situations.)

(6) The bids were not independently arrived at in open competition, were collusive, or were submitted in bad faith (See § 1-3.214 concerning authority to negotiate in such situations and Subpart 1-1.9 for reports to be made to the Department of Justice.)

(7) The bids received did not provide competition which was adequate to insure reasonable prices.

(c) Should administrative difficulties be encountered after bid opening which may delay award beyond bidders' acceptance periods, the several lowest vidders should be requested, before expiration of their bids, to extend the bid acceptance period (with consent of sureties, if any) in order to avoid the need for readvertisement.

§ 1-2.404-2 Rejection of individual bids.

(a) Any bid which fails to conform to the essential requirements of the invitation for bids, such as specifications, delivery schedule, or permissible alternates thereto, shall be rejected as nonresponsive.

(b) Ordinarily, a bid shall be rejected where the bidder imposes conditions which would modify requirements of the invitation for bids or limit his liability to the Government so as to give him an advantage over other bidders. 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 Ir 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 determined 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 re

Jected 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 may not take over the bid. Accordingly, the contracting officer shall reject the bid (see Comptroller General decision B-171959, September 3, 1971).

[29 F.R. 10141. July 24, 1964, as amended at 32 F.R. 2626, Feb. 8. 1967: 36 F.R. 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.

§ 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 specifies 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 qualifica

tions are substantive and affect the rights of other bidders.

§ 1-2.405

Minor informalities or irregularities in bids.

A minor informality or irregularity is one which is merely a matter of form and not of substance or pertains to some immaterial or inconsequential defect or variation of a bid from the exact requirement of the invitation for bids, the correction or waiver of which would not be prejudicial to other bidders. The defect or variation in the bid is immaterial and inconsequential when its significance as to price, quantity, quality, or delivery is trivial or negligible when contrasted with the total cost or scope of the supplies or services being procured. The contracting officer shall either give the bidder an opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid or waive such deficiency, whichever is to the advantage of the Government. Examples of minor informalities or irregularities include:

(a) Failure of bidder to return the number of copies of signed bids required by the invitation for bids.

(b) Failure to furnish required information concerning the number of bidders' employees.

(c) Failure of bidder to sign its bid, but only if (1) the unsigned bid is accompanied by other material indicating the bidder's intention to be bound by the unsigned bid document, such as the submission of a bid guarantee, or a letter signed by the bidder with the bid referring to and clearly identifying the bid itself; or (2) the firm submitting a bid has formally adopted or authorized, before the date set for opening of bids, the execution of documents by typewritten, printed, or stamped signature and submits evidence of such authorization and the bid carries such a signature.

(d) Failure of a bidder to acknowledge receipt of an amendment to an invitation for bids, but only if:

(1) The bid received clearly indicates that the bidder received the amendment, such as where the amendment added another item to the invitation for bids and the bidder submitted a bid thereon;

or

(2) The amendment involves only a matter of form or is one which has either no effect or merely a trivial or negligible effect on price, quantity, quality, or delivery of the item bid upon.

§ 1-2.406-2

Apparent clerical mistakes.

Any clerical mistake, apparent on the face of a bid, may be corrected by the contracting officer prior to award, if the contracting officer has first obtained from the bidder verification of the bid actually intended. Examples of such apparent mistakes are: obvious misplacement of a decimal point; obviously incorrect discounts (for example, 1 percent 10 days, 2 percent 20 days, 5 percent 30 days); obvious reversal of the price f.o.b. destination and the price f.o.b. origin; and obvious mistake in designation of unit. Correction shall be reflected in the award document.

§ 1-2.406-3 Other mistakes disclosed before award.

(a) Heads of executive agencies are authorized, in order to minimize delay in contract awards. to make the administractive determinations described below in connection with mistakes in bids alleged after opening of bids and before award. The authority contained herein to permit correction of bids is limited to bids which, as submitted, are responsive to the invitation for bids, and may not be used to permit correction of bids to make them responsive. This authority is In addition to that in § 1-2.406-2 or that which may be otherwise available.

(1) A determination may be made permitting the bidder to withdraw his bid where the bidder requests permission to do so and clear and convincing evidence establishes the existence of a mistake.

(2) However, if the evidence is clear and convincing both as to the existence of a mistake and as to the bid actually intended, and if the bid, both as uncorrected and corrected, is the lowest received, a determination may be made to correct the bid and not permit its withdrawal.

(3) A determination may be made permitting the bidder to correct his bid where the bidder requests permission to do so and clear and convincing evidence establishes both the existence of a mistake and the bid actually intended. However, if such correction would result in displacing one or more lower acceptable bids, the determination shall not be made unless the existence of the mistake and the bid actually intended are ascertainable substantially from the invitation and bid itself. If the evidence is clear and convincing only as to the mistake, but not as to the intended bid, a determination permitting the bidder to withdraw his bid may be made.

(4) If the evidence does not warrant a determination under paragraphs (a) (1), (2), or (3) of this section, a determination may be made that a bidder may neither withdraw nor correct his bid.

. (b) Heads of executive agencies may delegate to a central authority in their agencies, without power of redelegation, authority to make the determinations under paragraphs (a) (2), (3), and (4) this section. The authority to make determinations to permit withdrawal of bids as provided in paragraphs (a) (1) and (3) of this section may be delegated, without power of redelegation, to any purchasing activity having legal counsel available.

(c) Each proposed determination shall be approved by the agency's General Counsel, Associate General Counsel, an Assistant General Counsel, or other comparable legal officer. However, authority to approve determinations to allow withdrawal of bids pursuant to paragraphs (a) (1) and (3) of this section may be delegated to the legal counsel of purchasing activities.

(d) Suspected or alleged mistakes shall be processed as follows:

(1) Whenever the contracting officer suspects that a mistake may have been made in a bid, he shall immediately request the bidder to verify the bid. Such request shall inform the bidder why the request for verification is made-that a mistake is suspected and the basis for such suspicion; e.g., that the bid is sig. nificantly out of line with the next low or other bids or with the Government's estimate. If the time for acceptance of bids is likely to expire before a decision can be made, the contracting officer shall request all bidders whose bids may become eligible for award to extend the