(a) It is determined that its lateness was due solely to:

(1) Delay in the mails for which the bidder was not responsible; or

(2) Delay by the telegraph company for which the bidder was not responsible, where the invitation for bids specifically authorized telegraphic bids; or

(b) It is determined that the bid, if submitted by mail or telegram (where authorized), was received at the Government installation in sufficient time to be received at the office designated in the invitation by the time set for opening, and, except for delay due to mishandling on the part of the Government at the installation, would have been received on time at the office designated.

§ 1-2.303-3 Mailed bids.

(a) The time of mailing of late bids shall be determined as follows:

(1) The date and hour shown in a post office cancellation stamp or in a stamp affixed by an approved metering device shall be considered as the time of mailing.

(2) In the event of conflict between a post office cancellation stamp and a stamp of a metering device, the post office cancellation stamp shall govern.

(3) Except as provided in subparagraphs (5) and (6) of this paragraph, if the envelope or other outer covering shows the date but not the hour of mailing, the time of mailing shall be considered to be the last minute of the date shown.

(4) Except as provided in subparagraphs (5) and (6), of this paragraph, if the envelope or other outer covering does not show the date of mailing, the bid shall be presumed to have been mailed too late to be received in time.

(5) Information regarding the date and hour of mailing of registered mail, when not ascertainable from the post office cancellation stamp, shall be obtained from the postal authorities indicated in paragraph (b) of this section. The time of registration of registered mail is prima facie evidence of the time of mailing.

(6) Notwithstanding subparagraphs (1) through (5) of this paragraph, if the bidder, before award, demonstrates the date and hour of mailing by clear and convincing evidence, which includes substantiation by the post office of mailing, the date and hour thus demonstrated

shall be considered the time of mailing.

(b) Information concerning the normal time for mail delivery, and concerning registered mail, shall be obtained by the procuring activity from the postmaster, superintendent of mails, or a duly authorized representative for that purpose, of the post office serving that activity. When time permits, such information shall be obtained in writing. § 1-2.303-4 Telegraphic bids.

A late telegraphic bid shall be presumed to have been filed with the telegraph company too late to be received in time, except where the bidder demonstrates by clear and convincing evidence, which includes substantiation by an authorized official of the telegraph company, that the bid, as received at the office designated in the invitation for bids, was filed with the telegraph company in sufficient time to have been delivered by normal transmission procedure so as not to have been late. § 1-2.303-5

Hand-carried bids.

A late hand-carried bid, or any other late bid not submitted by mail or telegram, shall not be considered for award. § 1-2.303-6 Notification to late bidders.

Upon receipt of any late bid which is received before award, but which, on the basis of available information, cannot be considered for award under section 1-2.303-2, the bidder shall be notified promptly that its bid was received late. Such notification shall include substantially the following information:

-

was re

Your bid in response to Invitation for Bids No. --- dated ceived after the time for opening specified in the Invitation. Accordingly, your bid will not be considered for award unless clear and convincing evidence (including substantiation by the post office of mailing) is submitted promptly (and in any event before award) showing that late receipt was due solely to delay in the mails for which you were not responsible.

The foregoing notification shall be appropriately modified in the case of late telegraphic bids.

§ 1-2.303-7 Disposition of late bids.

A late bid which is not for consideration shall be held unopened until after award and then returned to the bidder (unless other disposition is requested or agreed to by the bidder). However, an unidentified late bid may be opened solely for identification purposes, but it

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

(a) A statement of the date and hour of mailing or filing.

(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.

(e) The envelope, or other covering, if the late bid was considered for award. § 1-2.304 Modification or withdrawal of bids.

Bids may be modified or withdrawn by written or telegraphic notice received prior to the exact time set for opening of bids. In addition, a bid may be withdrawn in person by a bidder or his authorized representative, providing 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. Modifications received by telegram shall be sealed in an envelope and no information contained therein shall be disclosed prior to the time set for bid opening.

§ 1-2.305 Late modifications and withdrawals.

(a) Modifications of bids and requests for withdrawal of bids which are received at the office designated in the invitation for bids after the exact time specified for opening are "late modifications" and "late withdrawals," respectively. A late modification or late withdrawal shall be subject to the rules applicable to late bids set forth in sections 1-2.303-3 through 1-2.303-5, and shall be considered as being effective only if it is received before award; and either:

(1) It is determined that its lateness was due solely to:

(i) Delay in the mails for which the bidder was not responsible; or

(ii) Delay in telegraphic transmission for which the bidder was not responsible;

or

(2) It is determined that the modification or withdrawal, if submitted by mail or telegram, was received at the Government installation in sufficient

time to be received at the office designated in the invitation by the time specified for opening and, except for delay due to mishandling on the part of the Government at the installation, would have been received on time at the office designated: Provided, however, A modification received from an otherwise successful bidder which is favorable to the Government and which would not be prejudicial to other bidders shall be considered at any time that such modification is received.

(b) Upon receipt of any late modification or late withdrawal which is received before award, but which, on the basis of available information, cannot be considered effective under this section 1-2.305(a), the bidder shall be notified promptly that its modification or request for withdrawal was received late. Such notification shall contain substantially the following information:

in re

The (modification) (request for withdrawal) of your bid dated sponse to Invitation for Bids No. dated was received after the time for opening specified in the Invitation. Accordingly, your (modification) (request for withdrawal) will not be considered effective unless clear and convincing evidence (including substantiation by the post office of mailing) is submitted promptly (and in any event before award) showing that late receipt was due solely to delay in the mails for which you were not responsible.

The foregoing notification shall be appropriately modified in the case of late modifications or late requests for withdrawals received by telegraph.

(c) Late modifications or late requests for withdrawals, which are not considered as being effective, shall be disposed of in the same manner as stated for late bids in section 1-2.303-7. Any modification received from an otherwise successful bidder shall be opened so as to determine whether it should be considered as stated in the proviso in section 1-2.305(a).

(d) Records of late modifications and late withdrawals shall be maintained in accordance with the record requirements for late bids in section 1-2.303-8.

Subpart 1-2.4-Opening of Bids and Award of Contract

§ 1-2.401 Receipt and safeguarding of bids.

(a) All bids (including modifications) received prior to the time set for opening

(b) Unidentified bids may be opened solely for the purpose of identification and then only by an authorized official. If a sealed bid is opened by mistake, the person who opens the bid will immediately write his signature and position title on the envelope and deliver it to the proper official. This official shall immediately write on the envelope an explanation of the opening, the date and time opened, the invitation for bid number, and his signature. Bids opened by mistake or for identification purposes shall be resealed in the envelope and no information contained therein shall be disclosed prior to the public bid opening. § 1-2.402 Opening of bids.

All

(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. bids received prior to the time set for opening shall then be publicly opened and, when practicable, read aloud to the persons present, and be recorded. If it is impracticable to read the entire bid, as where many items are involved, the total amount bid shall be read, if feasible. The original of each bid shall be carefully safeguarded, particularly until the abstract of bids required by section 1-2.403 has been made and its accuracy verified.

(b) Performance of the procedure in section 1-2.402(a) may be delegated to an assistant, but the bid opening officer remains fully responsible for the actions of such assistant.

(c) Examination 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 duplicate copies of such bids are not available for public inspection. such cases, the original bids may be examined by the public only under the

In

immediate supervision of a Government official and under conditions which preclude possibility of a substitution, addition, deletion, or alteration in the bids. However, see section 1-2.404-4 with respect to public disclosure of descriptive literature submitted by a bidder on a restrictive basis.

[25 F.R. 1511, Feb. 20, 1960, as amended, 25 F.R. 8108, Aug. 24, 1960]

§ 1-2.403 Recording of bids.

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 in an abstract or record which, except in the case of a classified procurement, shall be available for public inspection. When the items are too numerous to warrant the recording of all bids completely, an entry shall be made of the invitation number, opening date, general description of the procurement items, and the total price bid where definite quantities are involved. The record or abstract shall be completed as soon as practicable after the bids have been opened and read. The bid opening officer shall certify the accuracy of the record or abstract. If the invitation for bids is cancelled before the time set for bid opening, this fact shall be recorded, together with a statement of the number of concerns invited to bid and the number of bids received. § 1-2.404 Rejection of bids.

(a) 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 responsive 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 unnecessary exposure of bid prices. As a general rule, after opening, an invitation for bids should not be cancelled and readvertised due solely to increased requirements for the items being procured. Award should be made on the initial invitation for bids and the addi

tional quantity should be treated as a new procurement.

(b) Invitations for bids may be cancelled after opening but prior to award, and all bids rejected, where such action is consistent with section 1-2.404-1(a) and the contracting officer determines in writing that cancellation is in the best interest of the Government for reasons such as the following:

(1) Inadequate, ambiguous, or otherwise deficient specifications were cited in the invitation for bids.

(2) The supplies or services are no longer required.

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

(4) 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.

(See

(5) All otherwise acceptable bids received are at unreasonable prices. section 1-3.214 concerning authority to negotiate in such situations.)

(6) The bids were not independently arrived at in open competition, were collusive, or were submitted in bad faith. (See section 1-3.214 concerning authority to negotiate in such situations and Subpart 1-1.9 for reports to be made to the Department of Justice.)

(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.

§ 1-2.404-2 Rejection of individual bids.

(a) Any bid which fails to conform to the essential requirements of the invitation for bids, such as specifications, delivery schedule, or permissible alternates thereto, shall be rejected as nonresponsive.

(b) Ordinarily, a bid shall be rejected where the bidder imposes conditions which would modify requirements of the invitation for bids or limit his liability

to the Government so as to give him an advantage over 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 price to the Government cannot be determined for bid evaluation.

(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 the bid is to be considered only if, prior to date of award, bidder receives (or does not receive) award under a separate procurement.

(5) Limits rights of Government under any contract clause. However, a low bidder may be requested to delete objectionable conditions from his bid if these conditions do not go to the substance, as distinguished from the form of the bid. A condition goes to the substance of a bid where it affects price, quantity, quality, or delivery of the items offered.

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

(d) Bids received from any person or concern debarred or ineligible shall be rejected if the period of debarment or ineligibility has not expired (see Subpart 1-1.6).

(e) Low bids received from concerns determined to be not responsible, pursuant to section 1-1.310, shall be rejected (but, if bidder is a small business concern, see Subpart 1-1.7 with respect to certificates of competency).

(f) 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 section 1-10.102-5.

(g) The originals of all rejected bids, and any written findings with respect to such rejections, shall be preserved with the papers relating to the procurement. [25 F.R. 1511, Feb. 20, 1960, as amended at 25 F.R. 8075, Aug. 23, 1960]

§ 1-2.404-3

Notice to bidders of rejection of all bids.

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

§ 1-2.404-4 Restrictions on disclosure of descriptive literature.

(a) When a bid is accompanied by descriptive literature (as defined in section 1-2.202-5(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 (a) do not apply to unsolicited descriptive literature submitted by a bidder if such literature does not qualify the bid (see section 1-2.202-5 (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.

[25 F.R. 8108, Aug. 24, 1960]

§ 1-2.404-5 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 qualifications are substantive and would violate the competitive bid process.

§ 1-2.405 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, not affecting the price, quality, quantity, or delivery of the supplies or performance of the services being procured and the correction or waiver of which would not be prejudicial to other bidders. The contracting officer shall either give the bidder an opportunity to cure any deficiency resulting from a

minor informality or irregularity in a bid or, where it is not to the disadvantage of the Government, shall waive any such deficiency. Examples of minor informalities or irregularities include:

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

(b) Failure to furnish required information concerning the number of bidders' employees.

(c) Failure of bidder to sign its bid, but only if the unsigned bid is accompanied by other material indicating the bidder's intention to be bound by the unsigned bid document, such as a bid guarantee, or a letter signed by the bidder referring to and clearly identifying the bid itself. Where a firm submitting a bid has formally adopted or authorized, before the date set for opening of bids, the execution of documents by printed or stamped signature and submits evidence of such authorization and the bid carries such a signature, it shall be regarded as duly signed.

(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 bids and the bidder submitted a bid thereon;

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 accordance with this section 1-2.406. Such actions shall be taken prior to award.

§ 1-2.406-2 Apparent clerical mistakes.

Any clerical mistake, apparent on the face of a bid, may be corrected by the