Defense used solely or predominantly by and mandatory on military activities. This definition includes both fully coordinated and limited coordination military standards.

(d) Departmental Standards. A standard developed and prepared by, and of interest primarily to, a particular executive civilian agency, but which may be used in procurement by other agencies. § 1-1.306-1 Mandatory use and application of Federal Standards.

Federal Standards shall be used by all executive agencies, including the Department of Defense. Exceptions to this mandatory use requirement are as follows:

(a) The exceptions in section 1-1.305 relating to the mandatory use of Federal Specifications are for application to the use of Federal Standards.

(b) In a specific case or class of cases an executive agency may be granted an exception by the General Services Administration on submission of an adequate justification therefor.

curately reflect the needs of the Government.

[24 F.R. 1933, Mar. 17, 1959, as amended at 24 F.R. 4454, June 2, 1959] § 1-1.307-2

General requirements.

Except as otherwise provided in sections 1-1.307-3 and 1-1.307-4 purchase descriptions shall clearly and accurately describe the technical requirements or desired performance characteristics of the supplies or services to be procured; and, when appropriate, the testing procedures which will be used in determining whether such requirements or characteristics are met. When necessary, preservation, packaging, packing, and marking requirements shall be included. Purchase descriptions may contain references to formal Government specifications and standards which are to form a portion of the purchase description. § 1-1.307-3

Commercial, and State and local government specifications and standards.

Purchase descriptions may include or consist of references to specifications and standards issued, promulgated, or adopted by technical societies or associations, or State and local governments, if such specifications and standards (a) are widely recognized and used in commercial practice, (b) conform to the requirements of section 1-1.307-2, and (c) are readily available to suppliers of the supplies or services to be procured.

§ 1-1.307-4 Brand name products or equal.

(a) Purchase descriptions which contain references to one or more brand name products followed by the words "or equal" may be used only in accordance with this § 1-1.307-4 and § 1-1.307-5 through 1-1.307-9. The term "brand name product" means a commercial product described by brand name and make or model number or other appropriate nomenclature by which such product is offered for sale to the public by the particular manufacturer, producer, or distributor. Where feasible, more than one acceptable brand name product should be referenced. Where a "brand name or equal" purchase description is used, prospective contractors must be given the opportunity to offer products other than those specifically referenced by brand name if such other products will meet the needs of

the Government in essentially the same manner as those referenced.

or

(b) "Brand name or equal" purchase descriptions should set forth those safunctional, lient physical, characteristics of the referenced products which are essential to the needs of the Government, contain the following information to the extent available, and include such other information as is necessary to describe the item required:

(1) Complete common generic identification of the item required.

(2) Applicable model, make, or catalog number for each brand name product referenced, and identity of the commercial catalog in which it appears.

(3) Name of manufacturer, producer, or distributor of each brand name product referenced (and address if company is not well known).

(c) When necessary to describe adequately the item required, an applicable commercial catalog description, or pertinent extracts therefrom, may be used if such description is identified in the invitation for bids or request for proposals as being that of the particular named manufacturer, producer, or distributor.

[26 F.R. 8978, Sept. 23, 1961]

§ 1-1.307-5

Limitations on use of "brand name or equal” purchase descriptions.

"Brand name or equal" purchase descriptions may be used only under the circumstances in paragraph (a) or (b) of this section 1-1.307-5:

(a) When a suitable formal Government specification or standard or industry standardization document approved for agency use is not available, and a purchase description of the type referred to in § 1-1.307-3 is inadequate or unavailable, and a purchase description meeting the general requirements of § 1-1.307-2 cannot be prepared because

(1) Construction or composition of the product to be procured is too technically involved;

(2) Public exigency or military necessity precludes timely development; or

(3) It is impracticable or uneconomical to prepare a purchase description.

(b) When purchasing items for authorized resale, except military clothing.

(c) The product to be referenced must, in any event, be regularly offered for sale to the public.

(d) When a "brand name or equal" description is used, a notation shall be

Invitation for bids, "brand name or equal" descriptions.

(a) Except as provided in paragraph (b) of this section, when a "brand name or equal" purchase description is included in an invitation for bids:

(1) The following shall be inserted after each item so described in the invitation, for completion by the bidderBidding on:

Manufacturer's Name

Brand

No.

(2) In addition, the following clause shall be included in the invitation: BRAND NAME OR EQUAL

(As used in this clause, the term "brand name" includes identification of products by make and model.)

(a) If items called for by this Invitation for Bids have been identified in the schedule by a "brand name or equal" description, such identification is intended to be descriptive, but not restrictive, and is to indicate the quality and characteristics of products that will be satisfactory. Bids offering “equal" products will be considered for award if such products are clearly identified in the bids and are determined by the Government to be equal in all material respects to the brand name products referenced in the Invitation for Bids.

(b) Unless the bidder clearly indicates in his bid that he is offering an "equal" product, his bid shall be considered as offering a brand name product referenced in the Invitation for Bids.

(c) (1) If the bidder proposes to furnish an "equal" product, the brand name, if any, of the product to be furnished shall be inserted in the space provided in the Invitation for Bids, or such product shall be otherwise clearly identified in the bid. The evaluation of bids and the determination as to equality of the product offered shall be the responsibility of the Government and will be based on information furnished by the bidder or identified in his bid as well as other information reasonably available to the purchasing activity. CAUTION ΤΟ BIDDERS. The purchasing activity is not responsible for locating or securing any information which is not identified in the bid and reasonably available to the purchasing activity. Accordingly, to insure that sufficient information is available, the bidder must furnish as a part of his bid all descriptive material (such as cuts, illustrations, drawings, or other information) necessary for the purchasing activity to (i) determine whether the product offered meets the requirements of the Invitation for Bids and (ii) establish

exactly what the bidder proposes to furnish and what the Government would be binding itself to purchase by making an award. The information furnished may include specific references to information previously furnished or to information otherwise available to the purchasing activity.

(2) If the bidder proposes to modify a product so as to make it conform to the requirements of the Invitation for Bids, he shall (i) include in his bid a clear description of such proposed modifications and (ii) clearly mark any descriptive material to show the proposed modifications.

(3) Modifications proposed after bid opening to make a product conform to a brand name product referenced in the Invitation for Bids will not be considered.

(b) Where a component part of an end item is described in the invitation for bids by a "brand name or equal" purchase description and the contracting officer determines that application of the clause in paragraph (a) (2) of this section 1-1.307-6 to such component part would be impracticable, the requirements of paragraph (a) (1) and (2) of this section 1-1.307-6 shall not apply with respect to such component part. In such cases, if the clause is included in the invitation for bids for other reasons, there also shall be included in the invitation a statement identifying either the component parts (described by "brand name or equal" descriptions) to which the clause applies or those to which it does not apply. This paragraph (b) also applies to accessories related to an end item where a "brand name or equal" purchase description of the accessories is a part of the description of an end item.

(c) When an invitation for bids contains "brand name or equal" purchase descriptions, bidders who offer brand name products referenced in such descriptions shall not be required to furnish bid samples of the referenced brand name products; however, invitations for bids may require the submission of bid samples in the case of bidders offering "or equal" products.

[26 F.R. 8979, Sept. 23, 1961]

§ 1-1.307-7 Bid evaluation and award, "brand name or equal" descriptions. (a) Bids offering products which differ from brand name products referenced in a "brand name or equal" purchase description shall be considered for award where the contracting officer determines in accordance with the terms of the clause in § 1-1.307-6(a) (2) that the offered products are equal in all material

respects to the products referenced. Bids shall not be rejected because of minor differences in design, construction, or features which do not affect the suitability of the products for their intended use. (b) Award documents shall identify, or incorporate by reference an identification of, the specific products which the contractor is to furnish. Such identification shall include any brand name and/or make or model number, descriptive material, and any modifications of brand name products specified in the bid. Included in this requirement are those instances where (1) the description of the end item contains "brand name or equal" purchase descriptions of component parts or of accessories related to the end item and (2) the clause in § 1-1.307-6(a) (2) was applicable to such component parts or accessories (see § 1-1.307-6(b)).

[26 F.R. 8979, Sept. 23, 1961] § 1-1.307-8

Procedure for negotiated procurements and small purchases. (a) The policies and procedures prescribed in § 1-1.307-6 and 1-1.307-7 for formally advertised procurements shall be generally applicable to negotiated procurements.

(b) The clause in § 1-1.307-6(a) (2) may be adapted for use in negotiated procurements. If use of the clause is

not practicable (as may be the case in exigency purchases), suppliers shall be suitably informed that proposals offering products different from the products referenced by brand name will be considered if the contracting officer determines that such offered ucts are equal in all significant and material respects to the products referenced.

prod

Section 1-1.310 prescribes policy and procedures governing executive agencies in determining, before award, whether prospective contractors for furnishing the Government supplies or nonpersonal services (including construction) qualify as responsible.

§ 1-1.310-2 General.

The award of contracts to bidders who are not responsible is a disservice to the Government, which may, by such awards, be denied acceptable supplies or services within the time required. It frequently is inequitable to the contractors themselves, who may suffer hardship, sometimes even business failure, as a result of defaults, deductions, and rejections because of inability to meet contract requirements. Moreover, such awards are unfair to other competing bidders, capable of performance, and discourage them from bidding on future procurements. It is essential, therefore, that precautions be taken to award contracts only to reliable and capable bidders who can reasonably be expected to comply with contract requirements.

§ 1-1.310-3 Applicability.

This section 1-1.310 is applicable to all procurements made by executive agencies in the United States, its possessions, Hawaii, and Puerto Rico and, to the extent practicable, in other places. It is not applicable to orders placed under existing Government contracts, or to procurements from: (a) other governments (foreign, State, or local) .or their instrumentalities; (b) other United States Government departments and agencies or their instrumentalities (such as, Federal Prison Industries, Inc.) ; and (c) National Industries for the Blind.

the following standards as they relate to the particular procurement under consideration:

(1) Is a manufacturer, regular dealer, service contractor, or construction contractor (as defined in Subpart 1-1.2), or such other person or firm as may be found by the agency concerned to be qualified and responsible as a source of supply;

(2) Has adequate financial resources for performance, or has the ability to obtain such resources as required during performance;

(3) Has the necessary experience, organization, technical qualifications, skills, and facilities, or has the ability to obtain them (including probable subcontractor arrangements);

(4) Is able to comply with the proposed or required time of delivery or performance schedule;

(5) Has a satisfactory record of integrity, judgment, and performance (contractors which are seriously delinquent in current contract performance, considering the number of contracts and the extent of delinquencies of each, shall, in the absence of evidence to the contrary or compelling circumstances, be presumed to be unable to fulfill this requirement);

(6) Has not indicated an unwillingness or inability to conform to the requirements of the standard nondiscrimination clause; and

(7) Is otherwise qualified and eligible to receive an award under applicable laws and regulations.

(b) Acceptable evidence of "ability to obtain" financial resources, experience, organization, technical qualifications, skills, and facilities (see (a) (2) and (3), above), generally shall be a firm commitment or arrangement for the rental, purchase, or other acquisition thereof. § 1-1.310-6 Determination of responsibility.

(a) No contract shall be awarded to any person or firm unless the contracting officer has first determined that such person or firm is responsible within the meaning of sections 1-1.310-4 and 11.310-5. The signing of a contract shall be deemed to be a certification by the contracting officer that he has determined that the prospective contractor is responsible with respect to that contract.

(b) In any case where the procurement exceeds $10,000, and the contracting officer (or contracting agency) considers such a statement advisable for justification or other reasons, the contracting officer shall prepare, sign, and place in the contract file a statement of the facts on which the determination of responsibility was based. Relevant factors for consideration in determining whether such a statement is advisable would include the value, importance, or technical aspects of the procurement, or the fact that a pre-award on-site evaluation was considered necessary and that it was made.

Any supporting documents

or reports, including reports of preaward on-site evaluation and any information to support determinations of responsibility of subcontractors, should be filed with the statement.

§ 1-1.310-7

Information regarding re

sponsibility. Before making a determination of responsibility, the contracting officer shall have sufficient current information to satisfy himself that the prospective contractor meets the standards in section 1-1.310-5. Information from the following sources should be utilized before considering making a pre-award on-site evaluation:

(a) Information from the prospective contractor, including representations and other data contained in bids and proposals, or other written statements or commitments, such as financial assistance and subcontracting arrangements.

(b) Other existing information within the agency, including financial data, the list of debarred and ineligible bidders (see Subpart 1-1.6), and records concerning contractor performance.

(c) Publications, including credit ratings, and trade and financial journals.

(d) Other sources, including banks, other financial companies, and Government departments and agencies.

§ 1-1.310-8 Capacity and credit of small business concerns.

In the case of a prospective contractor which is a small business concern, if the contracting officer is not satisfied that the prospective contractor meets the standards in section 1-1.310-5 only because of the lack of adequate capacity or credit, he shall, before making a responsibility determination, comply with the

evaluations

on-site (c) Pre-award shall cover only those standards or portions thereof concerning which information available (from the sources listed in section 1-310-7) appears to be not current, sufficient, or reliable.

§ 1-1.310-10 Performance records.

Such records of contractor past performance shall be maintained as are considered necessary for the use of contracting officers in placing new procurements. Records in more complete detail should be maintained on contractors which have indicated by past actions that the character of their performance on contracts is questionable, and on new contractors whose reliability has not been established.