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Accounting Office (GAO) and the contracting agency is requested to submit a report, such report should include:

(1) A copy of the protest;

(ii) A copy of the bid submitted by the protesting bidder and a copy of the bid of the bidder who is being considered for award, or whose bid is being protested;

(iii) A copy of the invitation for bids, including the specifications or portions thereof, relevant to the protest;

(iv) A copy of the abstract of bids or relevant portions thereof;

(v) Any other documents which are relevant to the protest; and

(vi) A statement setting forth findings, actions, and recommendations in the matter together with any additional evidence or information deemed necessary in determining the validity of the protest. The statement shall be fully responsive to the allegations of the protest. If the award was made after receipt of the protest, the report will include the determination required in § 1-2.407-8 (b) (4).

(3) In appropriate cases. other persons, including bidders, involved in or affected by the protest shall be given notice of the protest and the basis therefor. They shall also be advised that, if they wish, they may submit their views and relevant information on the protest to the contracting officer within a specified period of time, normally within 1 week. In addition, if the protest has been lodged with GAO, they should be further advised that copies of such submissions should be furnished directly to GAO.

(4) Timely action on protests is essential to avoid undue delay in procurements and to ensure fair treatment to protesting firms and individuals. Accordingly, protests should be handled on a priority basis. Upon receipt of informal advice that a protest has been lodged with GAO, the contracting agency shall immediately begin compiling the information necessary for a report to GAO. This will ensure that a report in response to a formal request therefor will be forwarded to GAO as expeditiously as possible. To further expedite processing, the official who furnishes the agency's report to GAO should, upon request of the protester or GAO, simultaneously furnish a complete copy (except for classified or privileged information) to the protester and advise GAO that this has been done In such instances, the protester shall be requested to furnish a copy of any com

ments on the administrative report directly to GAO as well as to the contracting agency.

(5) To facilitate the submission of reports to GAO, agencies shall furnish GAO with the name, title, and telephone number of one or more officials (in both field and headquarters offices, if desired) which GAO may contact regarding protests. Each agency shall be responsible for promptly advising GAO of any change in such designated officials. As a further means of expediting these submissions, agencies may provide for reports to be forwarded directly to GAO by the office handling the contract without reference to the headquarters office of the agency

(b) Protests before award. (1) If award has not been made, the contracting officer may require that written confirmation of an oral protest be submitted by a specified time and inform the protester that award will be withheld until the specified time. If the written protest is not received by the time specified, the oral protest may be disregarded and award may be made in the normal manner unless the contracting officer, upon investigation, finds that remedial action is required, in which event such action shall be taken.

(2) Pursuant to § 1-2.407-8(a) (3), notice of a protest and the basis therefor may be given to bidders involved in or affected thereby. In addition, when a protest against the making of an award is received and the contracting officer determines to withhold the award pendIng disposition of the protest, the bidders whose bids might become eligible for award should be requested, before expiration of the time for acceptance of their bids, to extend the time for acceptance (with consent of sureties, if any) to avoid the need for readvertisement. In the event of failure to obtain such extension of bids, consideration should be given to proceeding with award under 1-2.407-8(b) (4).

(3) Where a protest has been lodged with the procuring agency, the views of GAO regarding the protest should be obtained before award whenever such action is considered to be desirable. Where it is known that a protest against the making of an award has been lodged directly with GAO, a determination to make award under $1-2.407-8(b) (4) must be approved at an appropriate level above that of the contracting officer, in accordance with agency procedures

While award need not be withheld pending final disposition by GAO of a protest, a notice of intent to make award in such circumstances shall be furnished GAO, and formal or informal advice should be obtained concerning the current status of the case prior to making the award. (4) Where a written protest against the making of an award is received. award shall not be made until the matter is resolved, unless the contracting officer determines that:

(i) The items to be procured are urgently required; or

(ii) Delivery or performance will be unduly delayed by failure to make award promptly; or

(iii) A prompt award will otherwise be advantageous to the Government.

If award is made under paragraph (b) (4) (i), (ii), or (iii), of this section, the contracting officer shall document the file to explain the need for an immediate award, and shall give written notice of the decision to proceed with the award to the protester and, as appropriate, to others concerned.

(c) Protests after award. A protest received after award shall be handled in accordance with agency procedures. However, although persons involved in or affected by the filing of a protest may be limited in instances where an award has been made, the contractor shall in any event be furnished with the notice of protest and the basis therefor in accordance with § 1-2.407-8(a)(3). Also, when it appears likely that an award may be invalidated and a delay in receiving the supplies or services is not prejudicial to the Government's interest, the contracting officer should consider a mutual agreement with the contractor to suspend performance on a no-cost basis. [35 F.R. 1236, Jan. 30, 1970]

§ 1-2.408 Information to bidders.

(a) (1) Where award is made to other than the low bidder, the contracting activity shall as a minimum notify the unsuccessful lower bidders promptly of the fact that their bids were rejected. Where the contracting officer has reason to believe that an unsuccessful lower bidder may protest the rejection of his bid, the notification to the bidder also should state in general terms the reason for rejection.

(2) Notification of rejection also shall be given to any unsuccessful higher bidder where the circumstances were such

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that he may have had reason to believe he might receive an award, e.g., the bidder was requested to extend his bid acceptance time or clarify his bid, or the bidder knew that his bid was the lowest received by bid opening time (but the lower successful bid was received late).

(3) In addition to the requirements of paragraphs (a) (1) and (2) of this section, notification of rejection should be given to all other unsuccessful bidders when feasible.

(b) Notification to unsuccessful bidders may be accomplished either orally, or in writing through the use of a form postal card, self-mailer, or other appropriate means. When giving such notification, the contracting activity also should extend to each bidder its appreciation for the interest the bidder has shown in submitting a bid.

(c) If additional information is requested by unsuccessful bidders, the contracting activity shall furnish them with the name and address of the successful bidder, together with the contract price, and should also inform them as to the location where a copy of the abstract of bids is available for inspection. However, when numerous awards have been made and furnishing such information would require so large an amount of work as to interfere with the normal operations of the contracting activity, only information concerning the location of the abstract of bids need be given. In addition, if the request is made by an unsuccessful bidder whose bid price was lower than that of the successful bidder, sufficient information shall be furnished in the reply to fully explain the basis for the award.

(d) If a request is received from an Inquirer who is neither a bidder nor a representative of a bidder, the purchasIng activity may furnish the names of the successful bidders and, if requested, the prices at which awards were made. However, where the furnishing of this information in response to such requests would unduly interfere with the normal operations of the purchasing activity, the Inquirer will be advised where a copy of the abstract of bids is available for inspection.

[30 F.R. 9593, July 31, 1965] § 1-2.409

Synopses of contract awards.

See 1-1.1004.

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(a) Two-step formal advertising is a method of procurement designed to promote the maximum competition practicable when available specifications are not sufficiently definite to permit a formally advertised procurement in accordance with Subparts 1-2.2, 1-2.3, and 1-2.4. It is a flexible procedure and is especially useful, in procurement of complex and technical items, to prevent the elimination of potentially qualified producers from the competitive base.

(b) Two-step formal advertising is conducted in two phases. The first step consists of the request for, and the submission, evaluation, and, if necessary. discussion of a technical proposal, without pricing, to determine the acceptability of the supplies or services offered. As used in this context, the word "technical" has a broad connotation and, among other things, includes engineering approach, special manufacturing processes, and special testing techniques. Also, when required to clarify basic technical requirements, other related requirements such as management approach, manufacturing plan, or facilities to be utilized may be clarified in this step. The second step consists of a formally advertised procurement, confined to those offerors who submitted an acceptable technical proposal in Step One.

(c) This method of procurement requires that the contracting officer work closely with technical personnel and rely on their specialized knowledge in determining the technical requirements of the procurement and the criteria to be used in evaluating technical proposals, and in making such evaluation. An objective of the two-step procedure is to permit the development of a sufficiently descriptive statement of the Government's requirements, including the development of a technical data package, so that subsequent procurements may be made by conventional formal advertising. § 1-2.502

Conditions for use.

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(a) Available specifications or purchase descriptions are not sufficiently definite or complete to permit full and free competition without engineering evaluation and necesary discussion of the technical aspects of the requirement to insure mutual understanding between each source and the Government.

(b) Definite criteria exist for evaluating technical proposals, such as applicable design, manufacturing, testing, and performance requirements, and special requirements for operational suitability and ease of maintenance; however, such criteria shall not include consideration of capacity or credit as defined in 1-1.708 of this chapter.

(c) More than one technically qualifled source is expected to be available both initially and after technical evaluation.

(d) A firm fixed-price contract or a fixed-price contract with escalation (see § 1-2.201(a) (21)) will be used. § 1-2.503 Procedures.

§ 1-2.503-1 Step One.

(a) Requests for technical proposals. A request for technical proposals shall be distributed to qualified sources in accordance with § 1-1.302-1 of this chapter. In addition, the request shall be synopsized in accordance with Subpart 1-1.10 and publicly posted in accordance with § 1-2.203-2. The request may be in the form of a letter and shall contain, as a minimum, the following information:

(1) The best practicable description of the supplies or services required.

(2) Notification of the intent to conduct the procurement in two steps and the actions involved.

(3) The requirements of the technical proposal, 1.e., the necessary details such as drawings, data, presentation, etc., to be submitted.

(4) The criteria for evaluating the technical proposal (§ 1-2.502(b)).

(5) A statement that the technical proposals shall not include prices or pricIng information

(6) The date by which the proposa must be received

(7) A statement that the Government may discuss the technical aspects of the proposal with the concern submitting the proposal.

(8) A statement that in the second step of the procurement only bids based upon technical proposals determined to be acceptable, either initially or as a result of discussions, will be considered for

award; and that each bid in the second step must be based on the bidder's own technical proposal.

(9) A statement that sources submitting unacceptable technical proposals will be so notified upon completion of the technical evaluation.

(10) A statement either that only one technical proposal may be submitted by each offeror or that multiple technical proposals may be submitted. When compliance with specifications permit utilization of essentially different technical approaches, it is generally in the interest of the Government to authorize the submission of multiple proposals. If multiple proposals are authorized the request shall include a statement substantially as follows:

Multiple Technical Proposals. In the first step of this two-step procurement, offerors are authorized and encouraged to submit multiple technical proposals presenting different basic approaches. Each technical proposal submitted will be separately evaluated and the offeror will be notified as to its acceptability.

(b) Receipt and evaluation of technical proposals. The following actions will be taken with respect to receipt and evaluation of technical proposals:

(1) Every precaution shall be taken to safeguard technical proposals against disclosure to unauthorized persons.

(2) Any reference to price or cost will be removed.

(3) Technical evaluation of the proposals will be based upon the criteria contained in the request for technical proposals and such evaluation will not include consideration of capacity or credit as defined in § 1-1.708.

(4) Technical proposals will be categorized as acceptable or unacceptable. Proposals will not be categorized as unacceptable when a reasonable effort on the part of the Government could bring the proposals to an acceptable status and increase competition. The contracting officer shall arrange for any necessary discussions with sources submitting technical proposals for the purpose of obtaining additional information or clarification which may be required. When, after discussion and submission of necessary information and clarification, technical proposals are determined to be acceptable, they will be so categorized. If, however, it is determined at any time that a technical proposal is not reasonably susceptible to being made accept

able, it should be classified as unacceptable and no discussions of it need thereafter be initiated.

(5) Upon final determination that a technical proposal is unacceptable, the contracting officer shall notify the source submitting the proposal of that fact. The notice shall indicate, in general terms the basis for such determination including a statement of whether rejection was based on failure to furnish sufficient information or an unacceptable engineering approach.

(c) [Reserved]

(d) Discontinuance. If, as a result of the evaluation of technical proposals, it appears necessary to discontinue the twostep advertising method of procurement, the full facts and circumstances will be set forth in writing and submitted to the office which originally approved the method of procurement. If that office approves the discontinuance, each source will be notified in writing of the discontinuance and the reasons therefor. § 1-2.503-2 Step Two.

Upon completion of Step One, a formally avertised procurement in accordance with Subparts 1-2.2, 1-2.3, and 1-2.4 will be conducted, except that invitations for bids

(a) Will be issued only to and considered only from those sources whose technical proposals have been evaluated and determined to be acceptable under Step One.

(b) Will include the following statement:

This invitation for bids is issued pursuant to two-step formal advertising procedures in subpart 1-2.5 of the Federal Procurement Regulations. Bids will be considered only from those firms who have submitted acceptable technical proposals pursuant to the first step of such procedures as initiated by

(Identify the request for technical proposals) Any bidder who has submitted multiple technical proposals in the first step of this two-step procurement may submit a separate bid covering each technical proposal which has been determined acceptable by the Government.

(c) Will prominently state that the supplies or services to be procured will be in accordance with the specifications and the bidder's technical proposal, as finally accepted, under the request for technical proposals. This may be accomplished in the Schedule item description

by a provision substantially in the form of the following example:

Radio antenna, in accordance with Exhibit No. dated (use other description of specifications as appropriate) and your Technical Proposal (insert

specific identification of the bidder's proposal including any revision thereof as finally accepted), incorporated herein by reference. Nothing contained in sald Technical Proposal shall constitute a waiver of any of the provisions of said Exhibit (or specifications).

(d) Will not be synopsized (see Subpart 1-1.10) or publicly posted (see § 1-2.203-2), except that the names of firms which have submitted acceptable technical proposals in step one of twostep formal advertising will be listed in the Commerce Business Daily for the benefit of prospective subcontractors in accordance with § 1-1.1003-4.

[29 F.R. 10141, July 24, 1964, as amended at 30 F.R. 9593, Aug. 31, 1965]

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1-3.404-1

1-3 404-2 1-3.404-3

1-3.404-4

1-8.404-5

1-3 406-2

Scope of subpart. Types of contracts.

[Reserved]

Selection of contract type.
Fixed-price contracts.
General.

Firm fixed-price contract.
Fixed-price contract with esca-

lation.

Fixed-price incentive contract. Prospective price redetermination at a stated time or times during performance.

[Reserved]

Retroactive price redetermination after completion.

Cost-reimbursement type con

tracts.

General.

Cost contract.

Cost-sharing contract.

Cost-plus-incentive-fee contract.

Cost-plus-a-fixed-fee contract.

Other types of contracts.

Time and materials contract.
Labor-hour contract.

Additional incentives.

Contracts with performance incentives.

Indefinite delivery type con

1-3.404-6

1-3.404-7

1-3.405

1-3.405-1 1-3 405-2

1-3.405-3

1-8.405-4

after

1-3.405-5

1-3.406

1-3.406-1

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General.

1-3.201

National emergency.

1-3.407-2

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$10,000.

1-9.409

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1-8.410

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1-3.410-1

1-3.410-2

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Basic agreements with educational institutions and non

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profit organizations.

Basic ordering agreement.

Subpart 1-3.5—[Reserved]

Subpart 1-3.6-Small Purchases

Scope of subpart.

Purpose.

Policy.

Competition.

Solicitation.

1-3.603-2

Data to support small purchases

tracts.

Other types of agreements.

Basic agreement.

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