may be purchased by the public from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

(d) A specification is the only medium for establishing a requirement for qualification. The preparing activity identified in the specification is responsible for qualification.

§ 12-1.1151 Justification for inclusion of qualification requirements.

Subject to approval by the office as designated in Administration procedures, a qualification requirement may be included in a specification only when one or more of the following conditions exist:

(a) The time required for testing after award would unduly delay delivery of the supplies being purchased.

(b) The cost of repetitive testing would be excessive.

(c) The tests would require expensive or complicated testing apparatus not commonly available.

(d) The interest of the Government requires assurance, prior to award, that the product is satisfactory for its intended use.

(e) The determination of acceptability would require performance data to supplement technical requirements contained in the specification.

§ 12-1.1152 Prior determinations.

Prior to inclusion of qualification in a specification, the preparing activity shall determine that:

(a) There is no other practicable way to obtain evidence of availability of products meeting the requirements of the specification.

(b) Sources, sufficient in number to provide an adequate base of supply, insofar as practicable, are available and willing to submit their products for qualification.

(c) Test facilities and resources are available to establish and maintain the QPL adequately and without delay.

§ 12-1.1153 Availability of lists.

Qualified Products Lists are intended for the use of the Government and its contractors, subcontractors, prospective bidders, and suppliers. Lists may be obtained by prospective bidders or suppliers who require these

Lists in furnishing supplies or services to the Government or its contractors. Lists are also available to the public upon request. When a person is provided with, or given access to, a QPL he should be advised as follows:

(a) The QPL has been prepared for use by or for the Government in the procurement of products covered by the specification and such listing of a product is not intended to and does not connote endorsement of the product by the Department of Transportation;

(b) All products listed have been qualified under the requirements for the product as specified in the latest effective issue of the applicable specification;

(c) The QPL may be revised or amended as necessary, and subject to change without notice;

(d) The listing of a product does not release the supplier from compliance with the specification requirements; and

(e) Use of the information for advertising or publicity purposes is permitted, provided that such publicity or advertising does not state or imply that the product is the only product of that type so qualified or that the Department of Transportation in any way recommends or endorses the manufacturer's product.

§ 12-1.1154 Opportunity for qualification.

(a) Upon determination that a product is to be covered by a QPL, manufacturers shall be urged to submit their products for qualification and where possible shall be given sufficient time to arrange for qualification testing prior to issuance of the initial invitation for bids or request for proposals for the item as a qualified product. Appropriate notice of such determination shall be furnished to the U.S. Department of Commerce, Commerce Business Daily, Room 1304, 433 West Van Buren Street, Chicago, IL 60607, requesting publication of five consecutive issues of the daily "Synopsis of U.S. Government Proposed Procurement, Sales and Contract Awards". The publicity given to the requirement for qualification testing shall include the following:

(1) An intention to establish a QPL for a product;

(2) The specification number and nomenclature of the product, and the name and address of the office to which the request for qualification should be submitted; and

(3) Notice that in making future awards consideration shall be given only to such products as have been accepted for inclusion in a QPL.

(b) Lists shall always be kept open for inclusion of products from additional suppliers.

§ 12-1.1155 Clarification of qualification requirements.

When there is any question concerning qualification requirements in a specification, the activity that prepared the specification will furnish clarification when requested by the contracting activity.

§ 12-1.1156 Procurement of qualified products.

§ 12-1.1156-1 General.

(a) Whenever qualified products are to be procured by the Government as end items, only bids or proposals offering products which are qualified for listing on the applicable QPL at the time set for opening of bids or award of negotiated contracts shall be considered in making awards.

(b) Whenever a qualified product is to be procured by a prime contractor as a component of an end item, the prime contractor shall be required to furnish a component which has been tested and qualified for inclusion in the applicable QPL by the time of award of the subcontract. Delay resulting from the prime contractor's awaiting qualification approval by the Government of a component shall not constitute excusable delay when a previously qualified cor ponent could have been procured in time to meet the end item delivery schedule.

(c) Procurements involving qualified products shall be governed by paragraphs (c)(1) through (4) of this section.

(1) Synopses of proposed procurements shall be published by purchasing activities, in accordance with FPR

1-1.1003, promptly upon receipt of procurement requests.

(2) The maximum time consistent with delivery requirements shall be allowed between issuance of the solicitation and the opening of bids or the award of a negotiated contract. As a minimum, however, contracting officers shall allow 30 calendar days between the dates of issuance and opening (award, in the case of negotiated contracts): Provided, That periods of less than 30 days may be set in cases of urgency when the justification for a shorter period is set forth in writing and made a part of the procurement file. In appropriate cases, advance notice of procurement involving qualified products may be given suppliers through the use of preinvitation notices. Such notices shall identify the specification requiring qualification.

(3) In procuring qualified products by formal advertising, invitations for bids will be distributed to suppliers in the same manner as if a qualified product were not involved, and will not be restricted to suppliers whose products have been qualified.

(4) Contracting officers shall forward requests from suppliers concerning qualification of products to the specification preparing activity.

§ 12-1.1157 Contract provisions.

(a) When qualified end products are to be procured, the provision in FPR 1-1.1101(b) shall be inserted in the solicitation, supplemented by the following:

The offeror shall insert the item name and the test number (if known) of each qualified product in the blank spaces below. Item Name-Test No.

Any change in location or ownership of the plant at which a previously approved product is, or was, manufactured requires reevaluation of the qualification. Such reevaluation must be accomplished prior to the bid opening date in the case of advertised procurements and prior to the date of award in the case of negotiated procurements. Failure of offerors to arrange for such reevaluation shall preclude consideration of their offers.

If the procurement is formally advertised, the following statement shall also be included:

Any bid which does not identify the qualified product being offered, either above or elsewhere in the bid, will be rejected.

(b) When qualified products are to be procured as components of end items, insert the following provision in the solicitation:

QUALIFIED PRODUCTS-COMPONENTS

When any of the end items which are to be supplied to the Government by the Contractor will contain one or more components which are required by the applicable specification to be qualified products, such components shall have been tested and shall be qualified for inclusion in the Qualified Products List (whether or not actually included in the List) at the time of award of any subcontract by the Contractor for such components, or, in the event the Contractor plans to manufacture such components himself, shall have been so tested and have so qualified before the Contractor begins to manufacture such components for performance of this contract (not before manufacture of the prototype, preproduction model, or first article, for qualification testing). Unless required for interchangeability or compatibility, the Contractor shall not cite brand names from any Qualified Products List in any subcontract solicitation, but shall refer to the pertinent specification so that optimum competition may be obtained. Delay resulting from the Contractor's awaiting qualification approval by the Government of a component shall not constitute excusable delay when a previously qualified component could have been procured in time to meet the end item delivery schedule. Any change in location or ownership of the plant at which a previously approved product is, or was, manufactured requires re-evaluation of the qualification. Such re-evaluation must be accomplished prior to the award of any subcontract by the Contractor for such components or prior to the beginning of manufacture if the Contractor manufactures such components himself.

§ 12-1.1158 Effect of debarment or suspension.

The inclusion of a product on the QPLS may be denied, and the qualification of a listed product may be withdrawn, by the Administration concerned, without notification to the manufacturer, if the name of the manufacturer appears on the lists of debarred or ineligible bidders which are maintained pursuant to FPR Subpart 1-1.6.

§ 12-1.1159 Waiver of qualification requirement.

When procuring a product under a specification which includes qualification requirements either for the end item or for components of the end item, such qualification requirements can be waived only by the activity that prepared the specification. In appropriate cases, when requested by the contracting officer, the preparing activity may waive qualification requirements. A notice, issued by the preparing activity, directing a waiver of the qualification requirement, constitutes adequate authorization for waiver of product qualification requirements. Where waivers have been granted, solicitations shall specifically indicate that the qualification requirement is inapplicable. Such information shall also be included in any Synopsis of the procurement.

§ 12-1.1160 Inadequate competition.

(a) Presolicitation. In connection with procurement of a qualified product as an end item, the contracting officer shall review the applicable QPL prior to solicitation to ascertain whether the number of sources is ade. quate for competition. If, in the opinion of the contracting officer, the number of sources is inadequate, action shall be taken as prescribed below unless he already has the necessary information.

(1) The contracting officer shall request the activity that prepared the specification to provide information concerning the status of tests on additional products, including the anticipated dates when such tests will be completed so that opening of bids or submission of proposals may be so scheduled as to allow completion of the tests.

(2) If no tests are being conducted or contemplated, the contracting officer shall further request the preparing activity to advise whether a means of quality assurance other than qualification approval may be substituted in the procurement.

(b) Postsoiicitation. The contracting officer shall advise the specification preparing activity of the name and address of any concern which requested copies of the solicitation but was not

§ 12-1.1204 Determination of responsibility or nonresponsibility.

§ 12-1.1204-1 Requirement.

(a) Except as provided in paragraph (c) of this section, the contracting officer shall, prior to award, prepare, sign, and place in the contract file, DOT Form F 4220.1 titled "Determination of Prospective Contractor Responsibility." Where a prospective contractor is determined to be nonresponsible, the form shall also be completed before notice of the rejection is furnished and the contract awarded to another.

(b) For each factor applicable to the procurement, the type of evaluation and the rating shall be checked. A completed form may include any combination of checks in the A, B, and C columns. Where the determination of responsibility is based on an SBA certificate of competency, a copy of the certificate shall be attached to the form and Block 6 of the form should not be completed except to reference the attachment.

(c) The form need not be completed in the case of:

(1) Procurements of the types listed in FPR 1-1.1201(b);

(2) Contracts of $10,000 or less, except that the form shall be prepared prior to the award of all contracts the primary purpose of which is research;

or

(3) Contracts for perishable subsistence supplies available for immediate shipment.

(d) Pending a revision of DOT Form F 4220.1, the reference in Block 7 to "FPR 1-1.310-6" shall be changed to read "FPR 1-1.1202".

Subpart 12-1.13-[Reserved] Subpart 12-1.16-Report of Identical Bids

§ 12-1.1603 Reporting requirement.
§ 12-1.1603-3 Submission of reports.

The report required by FPR 11.1603-3(b) shall be sent by each Administration directly to the Attorney General. An information copy shall be sent to the Director of Installations and Logistics, OST.

Subpart 12-1.50-Options

§ 12-1.5000 Scope of subpart.

This subpart applies to contracts for supplies and services other than for construction and research and development. It does not preclude the use of appropriate option provisions in such construction and research and development contracts.

§ 12-1.5001 Definition.

As used in this subpart, an option clause is a provision in a contract under which, for a specified time, the Government may elect to purchase additional quantities of the supplies or services called for by the contract, or may elect to extend the period of performance of the contract.

§ 12-1.5002 Applicability.

(a) Option clauses may be included in contracts where increased requirements within the period of contract performance are foreseeable, or where continuing performance beyond the original period of contract perfor

mance may be in the best interest of the Government. Since options require offerors to guarantee prices for definite periods of time with no guarantee that orders will be placed, their improper use could result in prices which are unfair to either the Government or the contractor. When additional requirements are foreseeable and subsequent competition would be impracticable because of such factors as production lead time and delivery requirements, the use of options may be preferable to later negotiating a price with the contractor at a time when it is the only practical source.

(b) An option normally should not be used where it can reasonably be foreseen that (1) minimum economic production quantities will be procured at some future date, and (2) startup costs, production lead time, and probably delivery requirements would not preclude adequate future competition.

(c) Option provisions and clauses shall not be included in contracts when:

(1) The supplies or services being purchased are readily available on the open market.

(2) The contractor would be required to incur undue risks: e.g., the price or availability of necessary materials or labor is not reasonably foreseeable.

(3) An indefinite quantity contract or requirements contract is appropriate except that options for continuing performance may be used in such contracts.

(4) Market prices for the supplies or services involved are likely to change substantially.

(5) The option quantities represent known firm requirements for which procurement funds are available.

§ 12-1.5003 Procedures.

(a) When a contract is to contain an option quantity, the solicitation must contain an appropriat option provision and the contract file shall be documented with a justification for the inclusion of the option. If the contract is to be negotiated, the determination and findings shall set forth the approximate quantity to be awarded and the extent of the increase to be permitted by the option. The contract shall limit the additional quantities of

supplies or services which may be procured, or the duration of the period for which performance of the contract may be extended, under the option and will fix the period within which the option may be exercised. In fixing the period within which the option may be exercised, consideration shall be given to (1) necessary lead time in order to assure continuous production and (2) the time required for additional funding and other necessary approval action. The period specified för exercising the option shall in all cases be kept to a minimum.

(b) Solicitations containing option provisions should cover five basic points: (1) Quantity of additional supplies or services which may be procured: Where the exercise of the option would result in increased quantities of supplies, the option quantity should be expressed in terms of a specified number of additional units rather than as a percentage of the base quantity. Where exercise of the option would result in an increase in the performance of services, the option may be similarly expressed in terms of the units of work contained in the contract (e.g., man hours). Where exercise of the option would result in an extension of the duration of the contract, the option may be expressed in terms of a specific date or dates or of an additional time period such as days, weeks, or months. Generally the quantity subject to the option should not exceed the basic quantity by more than 25 percent.

(2) The period within which the option may be exercised: The contract shall fix the period within which the option may be exercised. The period specified shall in all cases be kept to a minimum (generally no longer than 6 months).

(3) Delivery terms for the option quantities.

(4) Prices for the option quantities: The clause shall provide for firm unit prices for any additional quantity that may be ordered up to the maximum quantity of the option, or for any increase in the performance of services or extension of the duration of the contract.

(5) A statement on the evaluation of bids or proposals: Solicitations shall