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was deposited with that station, and (2) It is determined by the Government that the late receipt was due solely to a delay in the mail for which you are not responsible. In the case of certified mail, the original postmarked Receipt for Certified Mail must be furnished and is the only evidence acceptable under (1) above, except that, where the Receipt for Certified Mail identifies the post office station of mailing, evidence from such station of its closing time or written verification by such station of an approved time entry on the receipt are also acceptable.

(b) Where a late telegraphic bid is received and it is clear from available information that under § 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 § 2.303-7).

[34 F.R. 17888, Nov. 5, 1969]

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

(a) A statement of the date and hour of mailing, filing, or delivery, as the case may be;

(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; and

(e) The envelope, or other covering, if the late bid was considered for award. (25 F.R. 14118, Dec. 31, 1960]

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ing 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 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 herein shall be disclosed prior to the time set for bid opening. See § 2.401 for 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(b) A bid may be withdrawn in person by a bidder or his authorized representative, provided his identity is made known and he signs a receipt for the bid, but only if the withdrawal is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. [33 F.R. 19902, Dec. 28, 1968]

§ 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 § 2.303. However, a late modification of the otherwise 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. [28 F.R. 12552, Nov. 23, 1963]

Subpart D-Opening of Bids and Award of Contract

SOURCE: The provisions of this Subpart D appear at 25 F.R. 14118, Dec. 31, 1960, unless otherwise noted.

§ 2.401 Receipt and safeguarding of bids.

(a) All bids (including modifications) received prior to the time of opening shall be kept secure, and, except as provided in paragraph (b) of this section, unopened, in a locked bid box or safe. If an invitation for bids is canceled, or if a bidder effectively withdraws his bid in accordance with § 2.304, bids shall be returned to the bidders. Necessary precautions shall be taken to insure the

security of the bid box or safe. Prior to bid opening, information concerning the identity and number of bids received shall be made available only to Government employees, and then only on a "need to know" basis. 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 official specifically designated for this purpose, by the head of the purchasing activity. If a sealed bid is opened by mistake, the person who opens the bid will immediately write his signature and position on the envelope and deliver it to the aforesaid official. This official shall immediately write on the envelope an explanation of the opening, the date and time opened, the invitation for bids number, and his signature, and shall then immediately reseal the envelope.

§ 2.402 Opening of bids.

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(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. He shall then personally and publicly open all bids received prior to that time, and when practicable read them aloud to the persons present, and have the bids recorded. The original of each bid shall be carefully safeguarded until the abstract of bids required by 2.403 has been made and its accuracy verified.

(b) Performance of the procedure in paragraph (a) of this section may be delegated to an assistant, but the bid opening officer remains fully responsible for the actions of such assistant.

(c) Examinations 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 a duplicate bid is not available for public inspection. In such case, the original bid 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 bid. However, see § 2.404-4 with respect to public disclosure of descriptive literature or material submitted by a bidder on a restrictive basis.

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The opening of classified bids shall not be accessible to the general public. Such opening may be witnessed and the results recorded by those bidder representatives (a) who have been previously cleared from a security standpoint and (b) who represent bidders which were invited to bid on the procurement. Bids shall be made available only to those persons authorized to attend the opening of bids. The procedures set forth in § 2.402-1 for safeguarding unclassified bids are also applicable to classified bids. No public record shall be made of bids or bid prices received on classified invitations for bids.

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§ 2.402-3 Postponement of openings. (a) Notwithstanding § 2.208, amendment postponing bid openings may be issued even after the time scheduled for bid opening but otherwise in accordance with § 2.208:

(1) When the contracting officer has reason to believe that the bids of an important segment of bidders have been delayed in the mails for causes beyond their control and without their fault or negligence (such as, but not limited to, flood, fire, accident, weather conditions or strikes); or

(2) When emergency or unanticipated events interrupt normal governmental processes so that the conduct of bid openings as scheduled is impracticable.

(b) At the time a determination is made to postpone a bid opening under paragraph (a) (1) of this section, an announcement of the determination shall be publicly posted and, if practicable before issuance of formal amendment of the invitation, otherwise communicated to prospective bidders likely to attend the scheduled bid opening.

(c) In the case of paragraph (a) (2) of this section, the contracting officer may proceed with the bid opening as soon as practicable after the time scheduled, without prior amendment to the invitation for bids or notice to bidders, whenever the delay incident to such amendment or notice is not in the best interest of the Government. In such case, the time of actual bid opening shall be deemed to be the time set for bid opening for the purpose of determined "late bids" under § 2.303.

[36 F.R. 7913, Apr. 28, 1971]

§ 2.403 Recording of bids.

(a) The invitation number, bid opening date, general description of the procurement item, names of bidders, prices bid, and any other information required for bid evaluation, shall be entered on Abstract of Bids (DD Form 1501) which, except in the case of classified procurement, shall be available for public inspection. Abstract of Bids-Construction (DD Form 1501-1) shall be used for recording construction bids. When the items are too numerous to warrant the recording of all bids completely, an entry should be made of the opening date, invitation number, general description of the material, item number, and the price bid. The record or abstract shall be completed as soon as practical after the bids have been opened, and, as soon as all bids have been opened and read, the bid opening officer shall so certify on the record or abstract. If the invitation for bids is canceled before the time set for bid opening, this shall be recorded, together with a statement of the number of bids invited and the number of bids received. Copies of the abstract on unclassified bids exhibited to the public shall not contain information such as debarment, failure to meet minimum standards of responsibility, apparent collusion of bidders, or other notations not proper for the knowledge of the general public. The original of all rejected and unsuccessful bids, a copy of the accepted bid, and a copy of the abstract of bids shall be retained by the contracting officer, and shall be kept available for inspection by the duly authorized representatives of the General Accounting Office. They will be forwarded to that office upon request therefor, when required in individual

cases.

(b) The above forms need not be used by the Defense Fuel Supply Center for procurements of coal or petroleum products.

[31 F.R. 9853, July 21, 1966]

§ 2.404 Rejection of bids.

§ 2.404-1 Cancellation of invitation after opening.

(a) The 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 responsible 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 the 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 required should be treated as a new procurement.

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(b) Where it is determined prior to award but after opening that the requirements of § 1.1203 of this subchapter (relating to the availability and identification of specifications) have not been met, the invitation for bids shall be canceled. Invitations for bids may be canceled after opening but prior to award where such action is consistent with paragraph (a) of this section, and the contracting officer determines in writing that:

(1) Inadequate or ambiguous specifications were cited in the invitation;

(2) Specifications have been revised; (3) The supplies or services being procured are no longer required;

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

(5) 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;

(6) All otherwise acceptable bids received are at unreasonable prices;

(7) The bids were not independently arrived at in open competition, were collusive, or were submitted in bad faith (see § 1.111 of this subchapter for reports to be made to Department of Justice); or

(8) For other reasons, cancellation is clearly in the best interest of the Government.

Determinations to cancel invitations for bids shall state the reasons therefor.

(c) Should administrative difficulties be encountered after bid opening which may delay award beyond bidders' acceptance periods, the several lowest bidders 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.

§ 2.404-2 Rejection of individual bids.

(a) Any bid which fails to conform to the essential requirements of the invitation for bids shall be rejected.

(b) Any bid which does not conform to the specifications contained or referenced in the invitation for bids shall be rejected unless the invitation authorized the submission of alternate bids and the supplies offered as alternates meet the requirements specified in the invitation.

(c) Any bid which fails to conform to the delivery schedule or permissible alternates thereto stated in the invitation for bids shall be rejected as nonresponsive.

(d) Ordinarily, a bid should be rejected where the bidder attempts to impose conditions which would modify requirements of the invitation for bids or limit his liability to the Government, since to allow the bidder to impose such conditions would be prejudicial to 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 possible costs to the Government cannot be determined.

(2) Fails to state a price and in lieu thereof states that price shall be "price in 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 his bid is to be considered only if, prior to date of award, bidder receives (or does not receive) award under a separate procurement;

(5) Requires that Government is to determine that bidder's product meets Government specification; or

(6) Limits rights of Government under any contract clause.

A low bidder may be requested to delete objectionable conditions from his bid provided these conditions do not go to the substance, as distinguished from the form, of the bid, or work an injustice on other bidders. A condition goes to the substance of a bid where it affects price, quantity, quality, or delivery of the items offered.

(e) Any bid may be rejected if the contracting officer determines in writing that it is unreasonable as to price.

(f) Bids received from any person or concern whose name is included in the current "Joint Consolidated List of Debarred, Ineligible, and Suspended Contractors" shall be rejected if required by Subpart F, Part 1 of this subchapter.

(g) Low bids received from concerns determined to be not responsible, pursuant to § 1.904 of this subchapter, shall be rejected. (But see 1.705-4 of this subchapter if the bidder is a small business concern.)

(h) Where a bid guarantee is required and a bidder fails to furnish it in accordance with the requirements of the invitation for bids, the bid shall be rejected except as otherwise provided in § 10.102-5 of this chapter.

(i) The originals of all rejected bids, and any written findings with respect to such rejection, shall be preserved with the papers relating to the procurement. [25 F.R. 14118, Dec. 31, 1960, as amended at 26 F.R. 2603, Mar. 28, 1961; 29 F.R. 11814, Aug. 19, 1964]

§ 2.404-3 Notice to bidders of rejection of all bids.

When he determines to reject all bids, the contracting officer shall notify each bidder that all bids have been rejected, stating the reason for such action.

§ 2.404-4 Restrictions on disclosure of descriptive literature.

(a) When a bid is accompanied by descriptive literature (as defined in § 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 do not apply to unsolicited descriptive literature submitted by a bidder if such literature does not qualify the bid (see § 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.

§ 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 qualification is substantive and affects the rights of other bidders.

§ 2.405 Minor informalities or irregularities in bids.

A minor informality or irregularity is one which is merely a matter of form or is some immaterial variation from the exact requirements of the invitation for bids, having no effect or merely a trivial or negligible effect on price, and no effect on quality, quantity, or delivery of the supplies or performance of the services being procured, and the correction or waiver of which would not affect the relative standing of, or be otherwise prejudicial to, bidders. The contracting officer shall either give to the bidder an opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid, or, waive any such deficiency where it is to the advantage of the Government. Examples of minor informalities or irregularities include:

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

(b) Failure to furnish required information concerning the number of the bidder's employees or failure to make a representation concerning his size status;

(c) Failure of a bidder to sign his bid, but only if:

(1) The firm submitting the bid has formally adopted or authorized the execution of documents by typewritten, printed, or rubber stamped signature and submits evidence of such authorization and the bid carries such a signature, or

(2) 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 with bid, or a letter signed by the bidder with the bid referring to and clearly identifying the bid itself; and

(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 bid and the bidder submitted a bid thereon, or (2) The amendment clearly would have no effect or merely a trivial or negligible effect on price, and no effect on quality, quantity, delivery, or the relative standing of bidders, such as an amendment correcting a typographical mistake in the name of the Government purchasing activity; and

(e) Failure to furnish an affidavit concerning affiliates, if required pursuant to §2.201 (a) (2) (ii) and (b) (17).

(f) Failure to execute the certifications with respect to Equal Opportunity and Affirmative Action Program.

[25 F.R. 14118, Dec. 31, 1960, as amended at 28 F.R. 12552, Nov. 23, 1961; 33 F.R. 15386, Oct. 17, 1968; 35 F.R. 54, Jan. 3, 1970; 36 F.R. 7913, Apr. 28, 1971]

§ 2.406 Mistakes in bids.

§ 2.406-1 General.

After the opening of bids, contracting officers shall examine all bids for mistakes. In cases of apparent mistakes, and in cases where the contracting officer has reason to believe that a mistake may have been made, he shall request from the bidder a verification of the bid, calling attention to the suspected mistake. If the bidder alleges a mistake, the matter shall be processed in the manner set forth below. Such actions shall be taken prior to award.

§ 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 written or telegraphic verification of the bid actually intended. Examples of such apparent mistakes are: obvious error in placing decimal point; obvious discount errors (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. factory; obvious error in designation of unit. Correction of the bid will be effected by attaching the verification to the original bid and a copy of the verification to the duplicate bid. Correction will not be made on the face of the bid; however, it shall be reflected in the award document. [31 FR 9853, July 21, 1966]

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