KDA-2) together with the following data:

(i) All evidence furnished by the bidder including his written request to withdraw or modify the bid;

(ii) A copy of the signed bid, of the invitation for bids, and any specifications or drawings relevant to the alleged mistake;

(iii) An abstract or record of the bids received;

(iv) A written statement by the contracting officer setting forth

(a) The expiration date of the bid in question and of the other bids submitted;

(b) Specific information as to how and when the mistake was alleged;

(c) A summary of the evidence submitted by the bidder;

(d) In the event only one bid was received, a quotation of a recent contract price for the supplies or services involved, or, in the absence of a recent comparable contract, the contracting officer's estimate of a fair price for the supplies or services and the basis for such estimate;

(e) Any additional evidence considered pertinent including copies of all correspondence between the contracting officer and the bidder concerning the alleged mistake; and

(f) The course of action with respect to the bid that the contracting officer considers proper on the basis of the evidence.

(4) When time is of the essence, because of the expiration of bids or otherwise, the contracting officer may refer the case by telegraph or telephone to the Procurement Office, NASA Headquarters. Ordinarily, contracting officers will not refer mistake in bid cases by telegraph or telephone, particularly when the determinations set forth in paragraph (a) (2) or (3) of this section are applicable, since actual examination of the evidence is generally necessary to determine the proper action to be taken.

(5) Where the bidder fails or refuses to furnish evidence in support of a suspected or alleged mistake, the contracting officer shall consider the bid as submitted unless the amount of the bid is so far out of line with the amounts of other bids received or with the amount estimated by the Government or determined by the contracting officer to be reasonable, or there are other indications of error so clear, as reasonably to justify the conclusion that acceptance of the bid would be unfair to the bidder or to other

bona fide bidders, in which case it may be rejected. The attempts made to obtain the information required and the action taken with respect to the bid shall be fully documented.

(e) Nothing contained in this § 182.406-3 shall deprive the Comptroller General of his statutory right to question the correctness of any administrative determination made hereunder nor deprive any bidder of his right to have the matter determined by the Comptroller General should he so request. All doubtful cases will be submitted to the Comptroller General for advance decision.

(f) A record shall be kept of all administrative determinations made in accordance with this § 18-2.406-3, including a complete statment of the facts involved, and the action taken in each case. Copies of all such administrative determinations shall be included in the case file. Where a contract is awarded, a copy of any related determination shall be retained in the contract file.

§ 18-2.406-4 Disclosure of mistakes after award.

(a) When a mistake in a contractor's bid is not discovered until after the award, the mistake may be corrected by supplemental agreement if correcting the mistake would make the contract more favorable to the Government without changing the essential requirements of the contract. All other cases shall be referred to the Procurement Office, NASA Headquarters. They will either be decided by the Director of Procurement under paragraphs (b) and (c) of this section, be referred by the Director of Procurement to the Comptroller General, or be processed in accordance with Part 18-17 of this chapter.

(b) In lieu of submission to the General Accounting Office for decision, the Comptroller General, by Decision B-140233, dated February 3, 1961, has granted to NASA the authority to make the administrative determinations described below in connection with mistakes in bids alleged or disclosed after award. This authority is in addition to that provided by Public Law 85-804 (50 U.S.C. 1431-1435). (See Part 18-17 of this chapter), or that which otherwise may be available.

(1) A determination may be made to rescind a contract where the original contract price does not exceed $1,000.

(2) A determination may be made to reform a contract, irrespective of amount:

(i) To delete the item or items involved in the mistake where such deletion does not reduce the contract price by more than $1,000; or

(ii) To increase the price where such increase does not exceed $1,000 and if the contract price, as corrected, does not exceed that of the next lowest acceptable bid under the original invitation for bids. (c) Determinations under paragraph (b) of this section may be made only on the basis of clear and convincing evidence that a mistake in bid was made, and either that the mistake was mutual or that the unilateral mistake made by the contractor was so apparent as to have charged the contracting officer with notice of the probability of the mistake. Relief requested by a contractor due to an alleged mistake may be denied regardless of the monetary amount involved where it is determined the evidence is not clear and convincing:

(1) That a mistake in bid or proposal was made by the contractor, or

(2) That the mistake was mutual or the contracting officer was or should have been on notice of the error prior to the award of the contract.

(d) The Director of Procurement is the NASA official authorized to make determinations under this § 18-2.406-4. This authority may not be redelegated.

(e) Each proposed determination shall have the concurrence of the Office of General Counsel.

(f) Mistakes disclosed after award shall be processed as follows:

(1) Whenever a mistake in bid is alleged or disclosed after award, the contracting officer shall advise the contractor to support the alleged error by written statements and by all pertinent evidence, such as the contractor's file copy of the bid, his original work sheets and other data used in preparing the bid, subcontractors' and suppliers' quotations (if any), published price lists, and any other evidence which will serve to establish the mistake, the manner in which it occurred, and the bid actually intended.

(2) Where the contractor furnishes evidence in support of an alleged mistake, the contracting officer may either correct the mistake if authorized under paragraph (a) of this section, or refer the case to the Procurement Office,

NASA Headquarters (Code KDA-2) together with the following data:

(i) All evidence furnished by the contractor;

(ii) A copy of the contract, including a copy of the bid and any specifications or drawings relevant to the alleged mistake, and any change orders or supplemental agreements thereto;

(iii) An abstract or record of the bids received;

(iv) A written statement by the contracting officer setting forth

(a) Specific information as to how and when the mistake was alleged or disclosed;

(b) A summary of the evidence submitted by the contractor;

(c) His opinion whether a bona fide mistake was made in the bid and whether he was, or should have been, on constructive notice of the mistake before the award, together with the reasons or data upon which his opinion is based;

(d) In the event that only one bid was received, a quotation of a recent contract price for the supplies or services involved, or, in the absence of a recent comparable contract, the contracting officer's estimate of a fair price for the supplies or services, and the basis for such estimate;

(e) Any additional evidence considered pertinent, including copies of all relevant correspondence between the contracting officer and the contractor concerning the alleged mistake;

(f) The course of action with respect to the alleged mistake that the contracting officer considers proper on the basis of the evidence, and, if other than a change in contract price is recommended, the manner by which the item will otherwise be procured; and

(g) The status of performance and payments under the contract, including contemplated performance and payments.

(g) Nothing contained in this § 182.406-4 shall deprive the Comptroller General of his statutory right to question the correctness of any administrative determination made hereunder or deprive any contractor of his right to have the matter determined by the Comptroller General should he SO request.

(h) The Procurement Office, NASA Headquarters (Code KDA-2) shall maintain a record of all administrative determinations made in accordance with this § 18-2.406-4, the facts involved, and the

action taken in each case. A copy of the determination shall be attached to each copy of any contract rescission or reformation resulting therefrom.

(i) When administrative determination is precluded by the limitations set forth in this § 18-2.406-4, the matter may be considered in accordance with Part 18-17 of this chapter, or submitted to the Comptroller General for decision.

(j) Nothing contained in this § 182.406-4 shall prevent the submission by the Director of Procurement of any doubtful case to the Comptroller General. If a contractor's request for correction of an alleged mistake is denied by the Director of Procurement, the contracting officer shall SO notify the contractor.

Unless all bids are rejected, award shall be made by the contracting officer by written notice, within the time for acceptance specified in the bid or extension thereof, to that responsible bidder whose bid, conforming to the invitation for bids, will be most advantageous to the Government, price and other factors considered. (For discussion of other factors to be considered, see § 18-2.407-5.) Awards shall not be made until all required approvals have been obtained. Awards shall be made by mailing or otherwise furnishing to the successful bidder a properly executed award document or notice of award. When an advanced notice of award is issued, it shall be followed as soon as possible by the formal award. When more than one award results from any single invitation for bids, separate award documents shall be executed, each bearing its own separate number. When an award is made to a bidder for less than all the items which may be awarded to that bidder and additional items are being withheld for subsequent award, the first award to that bidder shall state that the Government may make subsequent awards on such additional items within the bidder's bid acceptance period. All provisions of the invitation for bids, including any acceptable additions or changes made by a bidder in the bid, shall be clearly and accurately set forth (either expressly or by reference) in the award document, since the award is an acceptance of the bid, and the bid and the award constitute the contract.

§ 18-2.407-2 Responsible bidder.

Before awarding the contract, the contracting officer shall determine that a prospective contractor is responsible. (See Subpart 18-1.9.)

§ 18-2.407-3 Discounts.

(a) Prior to issuing an invitation for bids (other than for construction), a determination shall be made as to what minimum period for prompt payment discounts will be considered in the evaluation of bids and such minimum period shall be stated in the invitation for bids. In determining the minimum period for a particular procurement, consideration shall be given to:

(1) The place of delivery, inspection, and acceptance in relation to the place of payment of invoices or vouchers;

(2) The number of days required to process invoices or vouchers from receipt through payment in the normal course of business; and

(3) The need for prolonged acceptance testing or other unusual circumstances tending to retard the normal processing of invoices or vouchers.

Generally, the minimum period will be expressed in multiples of 10 days; e.g., "10 calendar days," "20 calendar days," or "30 calendar days," since these time intervals coincide with the discount terms generally offered by industry.

(b) In determining which of several bids received is the lowest, any discount offered shall be deducted from the bid price on the assumption that the discount will be taken, unless the discount offered is for a lesser period than the minimum number of days specified in the invitation for bids. (See § 18-2.407-3 (a).) In evaluating equal bids offering discounts meeting the minimum discount period required by the invitation, a bid offering a longer discount period shall not be considered as being more advantageous to the Government. If a bid offers a prompt payment discount, but fails to specify the period in which the discount may be taken, the discount may be considered since award to the bidder gives the Government the right to deduct the discount from any payment made with reasonable promptness.

(c). If a bid offers a prompt payment discount for a period less than that specified in the invitation for bids, the discount shall not be considered in the evaluation of bids. If a bid would have been the lowest bid received if the discount

(a) Where an invitation for bids does not contain a price escalation clause, bids received which quote a price and contain a price escalation provision, with a ceiling (usually expressed in terms of a maximum percentage increase) above which the price will not escalate, shall be evaluated on the maximum possible escalation of the quoted base price. Bids which contain escalation with no ceiling shall be rejected unless a clear basis for evaluation exists.

(b) Where an invitation for bids contains a price escalation clause and no bidder takes exception to the escalation provisions, bids shall be evaluated on the basis of the quoted prices without the allowable escalation being added. Where a bidder increases the maximum percentage of escalation stipulated in the invitation for bids or limits the downward escalation provisions of the invitation, the bid will be rejected as nonresponsive. Where a bidder deletes the escalation clause from his bid, the bid shall be rejected as nonresponsive since the downward escalation provisions are thereby limited. Where a bidder decreases the maximum percentage of escalation stipulated in the invitation for bids, the bid shall be evaluated at the base price on an equal basis with bids that do not reduce the stipulated ceiling. However, if after evaluation the bidder offering the lower ceiling is in a position to receive the award, the award shall reflect the lower ceiling.

portation, etc. If bids are on an FOB origin basis, transportation costs to the designated destination points shall be considered in determining the lowest cost to the Government.

(b) Changes made or requested by the bidder in any of the provisions of the invitation for bids to the extent that any such change does not constitute ground for rejection of the bid under the provisions of § 18-2.404.

(c) Advantages or disadvantages to the Government that might result from making multiple awards. (See § 182.201-1(b) (19).)

(d) Federal, State and local taxes (see Part 18-11).

(e) Origin of supplies, whether domestic or foreign, and, if foreign, the application of the Buy American Act or any other prohibition on foreign purchases (see Part 18-6).

(f) Royalties the Government will be required to pay under patent license agreements. (See § 18-9.102.)

[36 F.R. 21471, Nov. 10, 1971]

§ 18-2.407-6 Equal low bids.

(a) (1) Where two or more low bids are equal in all respects, considering all factors except the priorities set forth in paragraph (a) (2) of this section, award shall be made in accordance with the order of priorities therein. Where two or more low bids are equal in all respects, considering all factors including the priorities set forth in paragraph (a) (2) of this section, award shall be made by a drawing by lot which shall be witnessed by at least three persons and which may be attended by the bidders or their representatives, subject to paragraph (a) (3) of this section.

(2) For the purpose of paragraph (a) (1) of this section, preference shall be given in the following order of priority:

(i) Certified-eligible concerns with a first preference (§ 18-1.801) that are also small business concerns (§ 18-1.701);

(ii) Other certified-eligible concerns with a first preference;

(iii) Certified-eligible concerns with a second preference (§ 18-1.801) that are also small business concerns (§ 181.701);

(iv) Other certified-eligible concerns with a second preference;

(v) Persistent or substantial labor surplus area concerns (§ 18-1.801) that are also small business concerns (§ 181.701);

(vi) Other persistent or substantial labor surplus area concerns; and

(vii) Other small business concerns. (3) If the application of the priorities in paragraph (a) (2) of this section results in two or more bidders being eligible for award, the award shall be made to the concern that will make the most extensive use of small business subcontractors, rather than by drawing lots. If two or more bidders still remain eligible for award, the award shall be made by a drawing by lot limited to such bidders.

(b) When award is to be made by drawing by lot and the information available shows that the product of a particular manufacturer has been offered by more than one bidder, a preliminary drawing by lot shall be made to ascertain which of the bidders offering the product of a particular manufacturer will be included in the final drawing to determine the award.

(c) When an award is determined by drawing by lot, the names and addresses of the three witnesses and the person supervising the drawing shall be placed on all copies of the abstract of bids or otherwise recorded.

(d) In each award where preference is to be given under this part, the contracting officer shall, prior to award, obtain from such concern a written statement that it will perform, or cause to be performed, the contract in accordance with the circumstances justifying the priority. [36 F.R. 21471, Nov. 10, 1971]

§ 18-2.407-7 Requirements in lieu of Standard Form 1036.

(a) Under General Regulation No. 51, Supplement No. 14, dated February 11, 1952, the General Accounting Office discontinued the requirement for preparation of Standard Form 1036, Statement and Certificate of Award, by agencies whose records are subject to site or comprehensive audit by that office. Accordingly, this form is not required in connection with NASA contracts, since NASA is subject to site audit by the General Accounting Office; and the supporting documents which would be used as a basis for preparation of Standard Form 1036 are retained in the procurement office and made available to the General Accounting Office for audit purposes.

(b) While the use of Standard Form 1036 is not required, it is still necessary to record the method of purchase and the basis for award. The contracting officer shall maintain records that will

show evidence of compliance with § 182.103, and which will state that the accepted bid was the lowest bid received, or list all lower bids and set forth reasons for their rejection. These reasons shall be set forth in such detail as is necessary to justify the award. For the purpose of these records, the lowest bid received is considered to be that bid which is lowest after a consideration of price factors only. The cost of transportation to the destination indicated in the invitation for bids, any acceptable discount offered by a bidder, and if the invitation so specifies any other Government cost factors, shall be considered price factors in determining the lowest bidder for purposes of these records. In each case where an award is made after receipt of equal low bids, the record shall set forth the manner in which the tie was broken. Where an award involves a mistake in bid and the matter has been resolved by administrative action, a copy of the bidder's verification in the case of an apparent mistake, or the written administrative determination concerned, shall be retained in the contract file. Where an award involves a mistake in bid on which the Comptroller General has rendered a decision, the file shall contain a citation by number and date of the decision and a copy thereof shall be retained in the contract file.

§ 18-2.407-8 Protests against award.

(a) General. (1) Contracting officers shall consider all protests or objections to the award of a contract, whether received before or after award. If the protest is oral and the matter cannot otherwise be resolved, written confirmation of the protest shall be requested. The protester shall be notified in writing of the final decision on the written protest.

(2) Every effort shall be made to resolve protests at the installation. It is the responsibility of the contracting officer to decide whether a protest has a valid basis and to take appropriate action when possible without referral to NASA Headquarters. Such action may be taken only with the concurrence of local counsel and shall be followed by a written explanation to NASA Headquarters accompanied by a copy of any pertinent correspondence. However, in the following cases written protests received by the contracting officer should be referred to NASA Headquarters: