SOURCE: 49 FR 12117, Mar. 28, 1984, unless otherwise noted.

410.004 Selecting specifications or descriptions for use.

(a) In accordance with FAR 10.004(b)(2), purchase descriptions shall not specify a product, or specific feature of a product, peculiar to a manufacturer unless the office initiating the purchase request furnishes written documentation and the contracting officer concurs that the product, or specific product feature, is essential to the Government's requirements and other similar products will not meet their requirements.

(b) A "brand name or equal" purchase description shall be used only under the conditions listed in FAR 10.004(b)(3) and in accordance with the following policies and procedures.

(1) A "brand name product" is a commercial product described by its brand name, make, model number, catalog designation or other description by which it is regularly offered for sale in the commercial marketplace.

(2) A "Brand Name, or Equal" purchase description shall include the following type information to clearly indentify the specific item named by brand(s):

(i) Identification of the item by generic description.

(ii) Make, model number, catalog designation, or other description, and identification of the commercial catalog where it is listed.

(iii) Name of manufacturer, producer, or distributor of the item and complete address.

(3) All salient characteristics of the "brand name product or products" which have been determined by the initiating office to be essential to the Government's minimum requirements shall be clearly identified and included in the purchase description under the heading, "Salient Characteristics."

(4) The following or similar language shall be included in every solicitation seeking offers on a "brand name, or equal" basis to allow offerors the opportunity to clearly identify the "equal" item being offered, and how that item meets the salient characteristics requirements of the Government:

(i) Offerors proposing to furnish an "equal" product, in accordance with the "Brand Name, or Equal" provision of this solicitation, shall provide the following information for the offered product:

Item Number:

Manufacturer's Name: Address:

Product Name (if any):

Product Make, Model or Catalog Description:

Offerors shall also be responsible for submitting all additional information on the above product necessary for the Government to determine whether the product offered meets the salient characteristics of the "brand name" as listed in the solicitation.

(5) In addition, the provision at 452.210-70, Brand Name or Equal, shall be inserted in solicitations where "brand name or equal" purchase descriptions are used. This provision may be modified for use in negotiated contracts.

(c) The policies and procedures in this section and the provision at 452.210-70 are not applicable to contracts for construction services, since the use of trade name descriptions are covered by the clause at FAR 52.236-5, Material and Workmanship.

[49 FR 12117, Mar. 28, 1984, as amended at 50 FR 14198, Apr. 10, 1985]

EFFECTIVE DATE NOTE: The information collection requirements contained in §410.004 will not be required until approved by the Office of Management and Budget.

410.007 Deviations.

HCA's are designated to authorize deviations as required by FAR 10.007 and are responsible for accomplishing the actions required by FAR 10.007. Copies of the applicable documents shall be provided to the Director, Office of Operations.

410.011 Contract clauses.

(a) The contracting officer shall insert the clause at 452.210-71, Statement of Work/Specifications, when the statement of work or specifications is included in Section J of the solicitation.

(b) The contracting officer shall insert the clause at 452.210-72, Attachment to Statement of Work/Specifica

tions, when there are attachments to the statement of work or specifications.

[53 FR 6063, Feb. 29, 1988]

PART 411-(RESERVED)

PART 412-CONTRACT DELIVERY OR PERFORMANCE

AUTHORITY: 5 U.S.C. 301 and 40 U.S.C.

486(c).

Subpart 412.1-Delivery or Performance Schedules

412.104 Contract clauses.

(a)(1) If the type of contract is a costplus-fixed fee, the contracting officer shall insert the clause at 452.212-70, Level of Effort-Cost Reimbursement Term Contract.

(2) If the type of contract is a cost or cost-sharing, the contracting officer shall use the clause with its Alternate I.

(3) If the type of contract is a costplus-incentive-fee, the contracting officer shall use the clause with its Alternate II.

(4) If the type of contract is a costplus-award-fee, the contracting officer shall use the clause with its Alternate III.

(b) The contracting officer shall insert the clause at 452.212-71, Task Orders, when task orders will be used in a cost-reimbursement term contract.

(c)(1) The contracting officer shall insert the clause at 452.212-72, Period of Performance, when it is necessary to specify a period of performance, beginning on the date of award, date of receipt of notice of award, or a specified date.

(2) The contracting officer shall insert the clause at 452.212-73, Effective Period of the Contract, when it is necessary to specify the effective period of the contract.

[53 FR 6063, Feb. 29, 1988]

(a) Prescribed form. Form AD-744, Purchase Order-Invoice-Voucher, is prescribed for use by USDA in lieu of Standard Form 44.

(b) Restrictions on use. Form AD-744 shall not be used unless all four conditions under FAR 13.505-3(b) are satisfied. Additionally, use is precluded for any of the following purposes:

(1) As a confirming purchase order; (2) As an order under a Blanket Purchase Agreement;

(3) As a receipt for purchases paid in cash;

(4) As an order for acquiring goods or services from Government agencies; or (5) As a substitute for cash purchases using imprest funds, unless funds are not available.

(c) Accountability controls. Form AD744 shall be controlled and accounted for in accordance with the procedures

established by the USDA National Finance Center.

[49 FR 12117, Mar. 28, 1984, as amended at 51 FR 34566, Sept. 29, 1986]

Sec.

PART 414-SEALED BIDDING

Subpart 414.2-Solicitation of Bids

414.201 Preparation of invitations for bids. 414.201-6 Solicitation provision.

Subpart 414.4-Opening of Bids and Award of Contract

414.404-1 Cancellation of invitations after opening.

414.406 Mistakes in bids.

414.406-3 Other mistakes disclosed before award.

414.406-4 Mistakes after award. 414.407 Award.

AUTHORITY: 5 U.S.C. 301 and 40 U.S.C.

486(c).

Subpart 414.2-Solicitation of Bids 414.201 Preparation of invitations for bids.

[53 FR 6063, Feb. 29, 1988]

414.201-6 Solicitation provision.

The contracting officer shall insert the provision 452.214-70, Award by Lot, when multiple items are segregated into clearly identifiable lots and the contracting officer wants to reserve the right to award by item within a lot, if award in that manner would be advantageous to the Government. [53 FR 6063, Feb. 29, 1988]

Subpart 414.4-Opening of Bids and Award of Contract

SOURCE: 49 FR 12117, Mar. 28, 1984, unless otherwise noted.

414.404-1 Cancellation of invitations after opening.

HCA's are authorized to make the determinations under FAR 14.404-1 (c) and (e)(1).

[51 FR 34566, Sept. 29, 1986]

414.406 Mistakes in bids.

414.406-3 Other mistakes disclosed before award.

(a) Contracting offices shall send all cases of mistakes in bid described in FAR 14.406-3 (a), (b), and (d) through their HCA to the Director, Office of Operations, for an administrative determination. The Director, Office of Operations, shall submit all determinations to the Assistant General Counsel, Research and Operations Division, for approval.

(b) The HCA shall make the determination described in FAR 14.406–3(c). An HCA may redelegate this authority to a level no lower than the contracting officer. Each proposed determination is subject to the approval of the Assistant General Counsel, Research and Operations Division, or the appropriate Regional Attorney or Attorneyin-Charge, whoever routinely provides legal services for the contracting office.

(c) Doubtful cases that are to be submitted to the General Accounting Office for advance decision shall be submitted through the Director, Office of Operations.

414.406-4 Mistakes after award.

If a mistake in bid is disclosed after award, the contracting officer shall make a final determination in accordance with the provisions of FAR 14.4064 (b) and (c) and shall coordinate each proposed determination with the Assistant General Counsel, Research and Operations Division, or the Regional Attorney-in-Charge, whoever routinely provides legal services to the contracting office. Such coordination shall, at a minimum, consist of the contracting officer providing the proposed determination and the case file to the appropriate legal officer for comment.

Subpart 415.4-Solicitation and Receipt of Proposals and Quotations

415.407 Solicitation provisions.

(a)(1) The contracting officer shall insert a provision substantially the same as the provision at 452.215-71, Instructions for the Preparation of Technical and Business Proposals, when the request for proposals requires offerors to submit technical proposals and business proposals, including cost or pricing proposals.

(2) The contracting officer shall insert a provision substantially the same as Alternate I to the provision, when a contract for major facilities management or other major services is contemplated.

(b) The contracting officer shall insert the provision at 452.215–72, Amendments to Proposals, in solicitations which require the submittal of lengthy, complex technical proposals.

(c) The contracting officer shall insert a provision substantially the same as the provision at 452.215-73, Submission of Proposals, when a proposal must be submitted in various formats and quantities.

(d) The contracting officer shall insert the provision at 452.215–74, General Financial and Organizational Information, in solicitations for negotiated fixed-price or cost-reimbursement contracts.

(e) The contracting officer shall insert a provision substantially the same as the provision at 452.215-75, Definition of Labor Classifications, in costreimbursement solicitations which identify the disciplines and levels of expertise required to perform the effort. The requisitioning program office shall identify for the contracting officer the labor classifications that may appropriately apply. Paragraphs (c) and (d) of the clauses are examples only, which may be modified or deleted to accommodate the particular pro

curement.

[53 FR 6063, Feb. 29, 1988]

415.408 Issuing solicitations.

Solicitations involving classified information shall be issued as prescribed in Subpart 404.4.

415.411 Receipt of proposals and quotations.

Classified proposals and quotations shall be handled as prescribed in Subpart 404.4.

415.413 Disclosure and use of information before award.

(a) Contracting officers shall use the Alternate II procedures in FAR 15.4132 and this 415.413 for the evaluation of proposals.

(b) The contracting officer may release proposals outside the Government for evaluation purposes, if the HCA approves the written justification therefor submitted by the contracting officer. The justification must show in sufficient detail the special needs or circumstances requiring the services of experts outside the Government.

(c) During the preaward or preacceptance period, only the contracting officer, the head of the cognizant contracting office, provided such person has contractual authority, or others specifically authorized by either of them may communicate technical or other information to, or conduct discussions with, offerors. Information shall not be furnished to an offeror if, alone or together with other information, it may afford the offeror an advantage over other offerors. (See FAR 15.610) However, general information that is not prejudicial to other offerors may be furnished.

(d) Agency personnel and non-Government evaluators having authorized access to information contained in proposals shall disclose neither the number of offerors nor their identity to the public or to anyone in Government not having a legitimate interest.

(e) The contracting officer shall obtain the following written certification and agreement from the non-Government evaluator prior to the release of any proposal to that evaluator. CERTIFICATION AND AGREEMENT FOR THE USE AND DISCLOSURE OF PROPOSALS RFP# Offeror

1. I certify that to the best of my knowledge and belief, no conflict of interest exists that may diminish my capacity to perform an impartial, and objective review of the offeror's proposal, or may otherwise result in