§ 1-2.202 Miscellaneous rules for solicitation of bids.

§ 1-2.202-1 Bidding time.

(a) Policy. Consistent with the needs of the Government for obtaining the supplies or services, all invitations for bids shall allow sufficient bidding time (i.e., the period of time between the date of distribution of an invitation for bids and the date set for opening of bids) to permit prospective bidders to prepare and submit bids. This will facilitate competition on reasonable and equal terms. Undue limitation of bidding time tends to restrict competition. Also, when prospective bidders do not have adequate time for computing prices and obtaining needed information on which to base their bids, higher prices to the Government may result from inclusion of unnecessary contingency allowances or the unwillingness of some to submit bids.

(b) Factors to be considered. The urgency of the Government's need for the items or services, the complexity of the invitation, the extent of subcontracting anticipated, the use of pre-invitation notices, the geographic distribution of bidders, the normal time for mail transmission of both invitations and bids, and other related factors, must be considered in establishing bidding time. For example, a bidding time of 30 days may be inadequate when bidders are required to prepare special drawings, designs, and samples, or to obtain quotations from several suppliers and subcontracts, as frequently is the case in construction and production contracts. Conversely, a bidding time of 15 days may be adequate when bids would reasonably be expected to be based on stocks-on-hand, or current regular production, or service personnel and facilities regularly available (as in the case of maintenance and repair of structures, and similar work).

(c) Minimum bidding time. As a general rule, bidding time shall be not less than 20 calendar days when procuring standard commercial articles and services and not less than 30 calendar days when procuring other than standard commercial articles or services. (Where brand name or equal purchase descriptions are used involving a modi

fication of the brand name product, see § 1-1.307-4 of this chapter.) This rule need not be observed in special circumstances or where the urgency of the need for the supplies or services does not permit such delay. Procurement activities shall develop procedures for ensuring that these bidding time requirements are observed.

[29 FR 10141, July 24, 1964, as amended at 36 FR 288, Jan. 8, 1971; 40 FR 2811, Jan. 16, 1975]

§ 1-2.202-2 Telegraphic bids.

(a) As a general rule, telegraphic bids will not be authorized. However, when in the judgment of the contracting officer the date set for opening of bids will not allow bidders sufficient time to prepare and submit bids on the prescribed forms or when prices are subject to frequent changes, telegraphic bids may be authorized. When such bids are authorized the invitation for bids shall require the bidder to include in the telegraphic bid specific reference to the invitation, the items or sub-items, quantities, and unit prices for which the bid is submitted, the time and place of delivery, and a statement that the bidder agrees to all the terms, conditions, and provisions of the invitation. In order that the contract may be executed on the proper form, the invitation for bids will also provide that telegraphic bids should be confirmed on the prescribed form and submitted promptly to the contracting officer.

(b) The term "telegraphic bids" includes bids or proposals submitted by telegram or by mailgram. Telegram as used herein includes mailgrams. [42 FR 33736, July 1, 1977]

§ 1-2.202-3 Place and method of delivery of supplies.

(a) Invitations for bids solicited f.o.b. origin shall state that bids will be evaluated on the basis of bid price plus transportation cost to the Government from point of origin to one or more designated destinations.

(b) Invitations for bids solicited f.o.b. origin or destination shall include as much of the following information as is pertinent to the particular procurement and shall require bidders to fur

nish the Government such of the following information as may be appropriate:

(1) Method of shipment, such as rail, water, air, or truck.

(2) Minimum quantities or lots, such as less than carload, less than truck load, carload, or truck load. (Where appropriate, the invitation should elicit information of the minimum size of shipments which the prospective supplier will make, so that freight evaluation may be on a realistic basis. The supplier should be cautioned that, if it ships in lesser quantities, it may be charged with any excess costs reXsulting.)

(3) Guaranteed shipping weight. Bidders should be required to furnish information regarding shipping weight and cube of items to be procured so that proper transportation costs can be computed. (The bidder should be cautioned that, if actual shipping weights or cubes vary from the guarantees, it may be charged with any excess costs resulting.)

(4) Packing, crating, and other preparations.

(5) Transit privileges. (Traffic management personnel can furnish necessary information and analysis of situations where transit privileges may be beneficial.)

(6) Any other shipping information required for evaluation.

(c) When the exact destination of the supplies being purchased is not known at the time bids are solicited, but the general geographical section in which delivery will be made is known, such as East Coast, Middle West, or West Coast, for purposes of evaluation of bids only, a definite place(s) or zone(s) shall be designated in the known geographical sector of delivery as the place to which transportation costs will be computed in determining the low bidder. The invitation should specify that bids will be submitted f.o.b. origin and that shipment will be made on Government bill of lading. So that prospective bidders may understand the method of evaluation to be used, the invitation shall contain a provision substantially as follows:

For the purpose of evaluating bids (and for no other purpose), the final destinations for the supplies will be considered to be as follows: [insert destination(s)).

§ 1-2.202-4 Bid samples.

(a) Definition. The term "bid sample" means a sample required by the invitation for bids to be furnished by a bidder as a part of his bid to show the characteristics of a product offered in his bid. Such samples will be used only for the purpose of determining the responsiveness of the bid and will not be considered on the issue of a bidder's ability to produce the required items.

(b) Policy. Bidders shall not be required to furnish a bid sample of a product they propose to furnish unless there are certain characteristics of the product which cannot be described adequately in the applicable specification or purchase description, thus necessitating the submission of a sample to assure procurement of an acceptable product. It may be appropriate to require bid samples, for example, where the procurement is of products that must be suitable from the standpoint of balance, facility of use, general "feel", color, or pattern, or that have certain other characteristics which cannot be described adequately in the applicable specifications. Where, however, based on the criteria set forth in this § 1-2.202-4, the use of bid samples is justified, the samples may be examined for any required characteristics, whether or not such characteristics may be adequately described in the specifications. Invitations shall list all of the characteristics for which the sample will be examined and bids will be rejected as nonresponsive if the sample fails to conform to each of the listed characteristics. Where more than a minor portion of the characteristics of the product cannot be adequately described in the specification, the product should be procured by negotiation in accordance with § 1-3.210.

(c) Justification. The reasons why acceptable products cannot be procured without the submission of bid samples shall be set forth and filed in the case file, except where such submission is required by the formal

specifications (Federal, military, departmental, etc.) applicable to the procurement.

(d) Requirements of invitation for bids. When bid samples are required, the invitation for bids shall (1) state the number and, if appropriate, the size of the samples to be submitted and otherwise fully describe the samples required, (2) list all characteristics for which the sample will be examined, and (3) include a provision in accordance with (e) of this § 1-2.202-4. Where samples are not considered necessary and a waiver of the sample requirements of a specification has been authorized, a statement shall be inIcluded in the invitation for bids that notwithstanding the requirements of the specifications, samples will not be required.

(e) Invitation for bids provision. When bid samples are required, a provision substantially as follows (modified, if appropriate, in accordance with paragraph (f) of this § 1-2.202-4) shall be included in the invitation for bids:

BID SAMPLES

(a) Bid samples, in the quantities, sizes, etc., required for the items so indicated in this Invitation for Bids, must be furnished as a part of the bid and must be received before the time set for opening bids. Samples will be evaluated to determine compliance with all characteristics listed for examination in the Invitation.

(b) Failure of samples to conform to all such characteristics will require rejection of the bid. Failure to furnish samples by the time specified in the Invitation for Bids will require rejection of the bid, except that a late sample transmitted by mail will be considered under the provisions for considering late bids, as set forth elsewhere in this Invitation for Bids.

(c) Products delivered under any resulting contract shall strictly comply with the approved sample as to the characteristics listed for examination and shall conform to the specifications as to all other characteristics.

(f) Waiver of requirement for bid samples.

(1) The provision prescribed in paragraph (e) of this section may be modified to provide that the requirement for furnishing samples may be waived as to a bidder who offers a product previously or currently being procured or tested by the procuring activity and

found to comply with specification requirements conforming in every material respect with those in the current invitation for bids so that further evaluation or testing would not add to the Government's knowledge of the acceptability of the product. When provision is to be made for such waiver, the invitation for bids provision in paragraph (e) of this section shall be modified by adding substantially the following at the end of paragraph (b) thereof:

However, the requirement for furnishing samples may be waived as to a bidder if (1) the bidder states in his bid that the product he is offering to furnish is the same as a product he has offered to the [* ] on a previous procurement and (2) the Contracting Officer determines that such product was previously procured or tested by the [" ] and found to comply with specification requirements conforming in every material respect to those in this Invitation for Bids.

*Contracting officer shall insert "procur ing activity" or such other designation as may be provided by agency procedures.

(2) Where considered necessary because of the nature of the product, the provision in paragraph (f)(1) of this section may be limited to provide for waiving the requirement only if the product offered is produced at the same plant at which the product previously procured or tested was produced.

(g) Unsolicited samples. If bid samples are not required by the invitation for bids, but samples are furnished with a bid, they will not be considered as qualifying the bid, and will be disregarded, unless it is clear from the bid or accompanying papers that it was the bidder's intention so to qualify the bid.

(h) Disposition of samples. Samples, if not destroyed in testing, shall be returned to bidders at their request and expense, unless otherwise specified in the invitation for bids.

[29 FR 10141, July 24, 1964, as amended at 29 FR 14494, Oct. 22, 1964; 30 FR 16110, Dec. 28, 1965]

§ 1-2.202-5 Descriptive literature.

(a) Definition. As used in this § 12.202-5, the term "descriptive literature" means information, such as cuts,

illustrations, drawings and brochures, which show the characteristics or construction of a product or explain its operation, furnished by a bidder as a part of his bid to describe the products offered in his bid. The term includes only information required to determine acceptability of the product, and : excludes other information such as :that furnished in connection with the qualifications of a bidder or for use in operating or maintaining equipment.

(b) Policy. Bidders shall not be required to furnish descriptive literature as a part of their bids unless the contracting agency deems that such literature is needed to enable it to determine before award whether the products offered meet the specification requirements of the invitation for bids and to establish exactly what the bidder proposes to furnish. It may be appropriate to require descriptive literature in the procurement of highly technical or specialized equipment, or where considerations such as design or style are important in determining acceptability of the product.

(c) Justification. The reasons why acceptable products cannot be procured without the submission of descriptive literature shall be set forth and filed in the case file, except where such submission is required by the formal specifications (Federal, military, departmental, etc.) applicable to the procurement.

(d) Requirements of invitation for bids. When descriptive literature is required, the invitation for bids shall clearly state what descriptive literature is to be furnished, the purpose for which it is required, the extent to 2 which it will be considered in the evaluation of bids, and the rules which will apply if a bidder fails to furnish it before bid opening or if the literature furnished does not comply with the requirements of the invitation for bids. Where descriptive literature is not considered necessary and a waiver of the literature requirements of a specification has been authorized, a statement shall be included in the invitation for bids that notwithstanding the requirements of the specifications, descriptive literature will not be required.

(1) Except as provided in paragraph (d)(2) of this section, if bidders are to furnish descriptive literature as a part of their bids, a provision substantially as follows (modified, if appropriate, in accordance with paragraph (e)(1) of this section) shall be included in the invitation for bids:

Requirement for DescriptiveE LITERATURE

(a) Descriptive literature as specified in this Invitation for Bids must be furnished as a part of the bid and must be received before the time set for opening bids. The literature furnished must be identified to show the item in the bid to which it pertains. The descriptive literature is required to establish, for the purposes of bid evaluation and award, details of the products the bidder proposes to furnish as to [* J.

(b) Failure of descriptive literature to show that the product offered conforms to the specifications and other requirements of this Invitation for Bids will require rejection of the bid. Failure to furnish the descriptive literature by the time specified in the Invitation for Bids will require rejection of the bid, except that if the material is transmitted by mail and is received late, it may be considered under the provisions for considering late bids, as set forth elsewhere in this Invitation for Bids.

*Contracting officer shall insert significant elements such as design, materials, components, or performance characteristics, or methods of manufacture, construction, assembly, or operation, as appropriate.

(2) When brand name or equal purchase descriptions are used, the requirements of this § 1-2.202-5 are met by inserting in the invitation for bids the brand names provision set forth in § 1-1.307-6.

(e) Waiver of requirements for descriptive literature. (1) The provision prescribed in paragraph (d)(1) of this section may be modified to provide that the requirements for furnishing descriptive literature may be waiver as to a particular bidder if (i) the bidder states in his bid that the product he is offering to furnish is the same as a product previously or currently being furnished to the procuring activity and (ii) it is determined by the contracting officer that such product complies with the specification requirements of the current invitation for bids. When provision is to be made for such waiver, the invitation for bids provision in paragraph (d)(1) of this

section shall be modified by adding substantially the following at the end of paragraph (b) thereof:

However, the requirements for furnishing descriptive literature may be waiver as to a bidder if (1) the bidder states in his bid that the product he is offering to furnish is the same as a product he has previously furnished to the [* ] under a prior contract and the bidder identifies the contract, and (2) the Contracting Officer determines that such product meets the requirements of this Invitation for Bids.

*Contracting officer shall insert "procuring activity" or such other designation as may be provided by agency procedures.

(2) If the invitation for bids contains a provision for waiver in accordance with paragraph (e)(1) of this section, a bidder may submit his bid either on the basis of the descriptive literature to be furnished or on the basis of a previously procured product. If he elects to submit his bid on one basis, he is precluded from having his bid considered on the alternative basis after bids are opened.

(f) Unsolicited descriptive literature. If the furnishing of descriptive literature is not required by the invitation for bids, but such literature is furnished with a bid, it will not be considered as qualifying the bid, and will be disregarded, unless it is clear from the bid or accompanying papers that it was the bidder's intention so to qualify the bid.

(g) See § 1-2.404-4 for requirements with respect to restrictions on the public disclosure of descriptive literature submitted by a bidder.

§ 1-2.202-6 Final review of invitations for bids.

The contracting officer shall ensure that each invitation for bids is thoroughly reviewed prior to its issuance to detect and correct discrepancies or ambiguities which could limit competition or result in the receipt of nonresponsive bids.

[40 FR 2811, Jan. 16, 1975]

§ 1-2.203 Methods of soliciting bids.

§ 1-2.203-1 Mailing or delivering to prospective bidders.

Invitations for bids or pre-invitation notices (see § 1-2.205-4(c)) shall be mailed (or delivered) to a sufficient number of prospective bidders so as to elicit adequate competition. Invitations for bids may be mailed for informational purposes to Government agencies, including procurement information offices, or to such other organizations as may be authorized by agency procedures.

§ 1-2.203-2 Displaying in public places.

Copies of unclassified invitations for bids shall be displayed at the procuring office and/or at other appropriate public places.

§ 1-2.203-3 Publicity in newspapers and trade journals.

(a) Free publicity. A brief announcement of the proposed procurement, or copies of unclassified invitations for bids, may be made available for free publication to newspapers and to trade journals and magazines.

(b) Paid advertisements. Paid advertisements in newspapers and trade journals shall be contracted for in accordance with agency procedures pursuant to 5 U.S.C. 302; 44 U.S.C. 321, 322, and 324; and Title 7, Chapter 5200, General Accounting Office Policy and Procedures Manual for Guidance of Federal Agencies.

§ 1-2.203-4 Synopses of invitations for bids.

Synopses of invitations for bids shall be prepared and publicized in the Commerce Business Daily in accordance with § 1-1.1003. Requests for invitations for bids received by the procuring activity as a result of publicizing shall be honored to the extent that copies are available. The names of prospective bidders who are furnished invitations for bids in response to their requests shall be added to the bidders mailing list for the particular procurement. However, when the request is made by a person or an organization known not to be a prospective bidder,