ment (including items coded GSA 5, 6, 7, or 8 in military pricelists).

(2) Items procured under supply support programs for overseas activities.

(3) Items required in support of the Forest Service fire control program as provided in § 5A-72.106-2.

(4) Items involving a total purchase price per line item of $250 or less.

(5) Exigency purchases.

(c) Procedure.-(1) Review of purchase requisitions. Requisitions received for items not identified to any of the specifications or standards referenced in (a) (1), above, shall be checked against the current Index of Federal Specifications and Standards.

(i) If the commodity requested is listed in the Index, the contracting officer shall determine whether any item covered by the specification or standard will fulfill the same functional end use as the item requested. If so, the specification or standard shall be used unless the ordering office submits a justification for an exception to or deviation from such specification or standard. Prior approval of the ordering office for the use of such specification or standard should be obtained when the purchase requisition cites a "brand name" or includes a detailed description.

(ii) If the commodity is not listed in the Index, or it is not covered by an existing specification or standard of the types referred to in (a) (1), above, the item may be purchased as a "permitted nonstandard item" subject to current commodity procurement assignments and applicable procurement regulations.

(2) Advice to agencies. In all contacts involving furnishing of technical or professional advice and assistance to agencies in their own procurements, buying activities shall promote the procurement of standard items. Whenever an agency requests a buying activity to furnish advice or recommendations with respect to the purchase by the agency of items under deviations or exceptions authorized by §§ 1-1.305-2 or 1-1.305-3, or a waiver for purchase of an item similar to a GSA stores stock item or a Federal Supply Schedule item, and the advice, recommendation, or reply proposed by the buying activity will be (or might be) construed as concurrence in the purchase of a "prohibited nonstandard item," approval shall be obtained before such advice or recommendation is given.

(3) Request for approval. Whenever (i) an ordering agency submits a justification for the purchase, either by the agency (see § 5A-73.110-2) or by an FSS buying activity, of a "prohibited nonstandard item" or (ii) a buying activity proposes to furnish advice or a recommendation as to the purchase of such an item by an agency through its own procurement office, prior approval shall be obtained by addressing a memorandum to the Director, Standardization Division. The memorandum shall contain the recommendation of the buying activity, be accompanied by the agency justification, where applicable, and be prepared for the signature of the Director, POD, or Regional Director, FSS, as appropriate. The Director, Standardization Division, shall evaluate the request in collaboration with any other interested Central Office organizational elements and shall recommend the action to be taken by preparing a reply to the agency (with a copy for the buying activity involved) in the case of (i), above, or to the Director, POD, or Regional Director, FSS, in the case of (ii), above. The reply will be signed by the Assistant Commissioner for Standards and Quality Control where the request is denied, or by the Commissioner, FSS, where the request is approved.

(4) Use of special terminology. The terms "nonstandard item," "permitted nonstandard item," and "prohibited nonstandard item" are intended for internal use only in applying the procedures prescribed in this § 5A-1.305-70. Because these terms may not have the same meanings to other agencies, they should not be used in correspondence or discussions with agencies. More detailed language which will be more meaningful to such agencies shall be used.

Where it has been determined in accordance with § 1-1.307-1(b) of this title that only a particular brand name product has features which are essential to the Government's requirements, the purchase description shall specify the brand name of the product without adding the words "or equal." In such cases, the procurement should be made by negotiation (see also subparagraphs (2), (3), and (13) of § 1-3.210(a) of this title). [32 F.R. 12558, Aug. 30, 1967] § 5A-1.307-4

equal.

Brand name products or

(a) Referencing of brand name products. Brand name or equal purchase descriptions shall reference all brand name products known to be acceptable and of current manufacture. Where the use of a brand name or equal purchase description results in the purchase of an acceptable brand name product which was not referenced in the description (an “equal” product), a reference to that brand name product should be included in the purchase description for subsequent procurements. Where it is found that a referenced brand name product is no longer manufactured, the reference thereto should be deleted from the purchase description. In the case of a "brand name or equal" description approved by the Central Office for general use (see § 5A-1.307-5(b)(1)) such additions and deletions should be made immediately by the buying activity and reported to the Procurement Operations Division which will arrange for formal revision of the purchase description.

(b) Specifying salient characteristics. (1) It is imperative that brand name or equal purchase descriptions specify each physical, functional, or other characteristic of the referenced brand name products which is essential to the intended

end use. (For the effect of failure to specify an essential characteristic, see § 5A-1.307-7.) However, care must be taken to avoid specifying characteristics which cannot be reasonably demonstrated as materially affecting the intended end use of the product since this would tend to restrict competition unnecessarily. Depending upon the particular product involved and its intended end use, it may be essential to specify: (i) Kind of material.

(ii) Dimensions.

(iii) Weight limitations, where weight is significant.

(iv) Electrical or chemical requirements.

(v) Principles of operation.

(vi) Restrictive or significant environmental conditions.

(vii) Essential operating or use conditions.

(viii) If part of an assembly, the location within the assembly.

(ix) Equipment with which the item is to be used.

(x) Special features.

(2) When describing salient characteristics, permissible tolerances should be indicated. Care must be taken to avoid specifying an exact characteristic (e.g., a specific dimension) of a particular brand name product as set forth in a commercial catalog description, except where that exact characteristic is essential to the Government's need. The contracting officer must be prepared to justify such a requirement. [32 F.R. 12559, Aug. 30, 1967]

§ 5A-1.307-5 Limitations on use of "brand name or equal" purchase descriptions.

(a) General. The use of brand name or equal purchase descriptions in solicitations for bids or offers in the limited circumstances described in § 1-1,307-5 of this title is intended to promote maximum competition by encouraging the offering of products which are equal in all material respects to the brand name products referenced in such descriptions. The identification of items by the use of brand name or equal descriptions is not intended to indicate a preference for the brand name products referenced in the descriptions, but is to indicate the quality and characteristics of products that

will meet the Government's needs (see (a) of the clause in § 1-1.307-6 of this title). Brand name or equal descriptions shall not be used as a means of procuring a particular brand name product under the guise of competitive procurement to the exclusion of other products which would meet the actual needs (see § 5A-1.307-1).

(b) Approval required. A "brand name or equal" purchase description shall not be used unless:

(1) The purchase description is one which has been approved by the Standardization Division, i.e., those issued on GSA Form 419, Stock Item Purchase Description, by the Procurement Operations Division; those issued formally by the Standardization Division as numbered purchase descriptions; or those previously approved for use in Federal Supply Schedule invitations for bids; or

(2) In the case of a brand name or equal description which has not been approved by the Standardization Division (see subparagraph (1) of this paragraph), its use has the prior approval of the Chief, Procurement Branch, in the Procurement Operations Division, or the Chief, Buying Division, in the regional office (Chief, Procurement Division, in the case of Region 9). Such approval shall not be given unless the approving official is satisfied that use of the description is permissible under § 1-1.307-5 of this title and this § 5A-1.307. [32 F.R. 12559, Aug. 30, 1967]

§ 5A-1.307-7 Bid evaluation and award, "brand name or equal" descriptions. A bid may not be rejected for failure of the offered product to match a characteristic of a referenced brand name product if that characteristic was not specified in the brand name or equal description. However, if it is clearly established that such unspecified characteristic is essential to the intended end use, the invitation is defective and no award may be made. In such cases, if time permits, the requirement should be readvertised using a purchase description which fully advises bidders of all the essential characteristics.

[32 F.R. 12559, Aug. 30, 1967]

§ 5A-1.307-8 Procedure for negotiated procurements and small purchases. The policies and procedures in § 11.307 of this title and this § 5A-1.307 for

(a) Where by virtue of the terms of any invitation for bids, a contractor will be required to meet estimated or stated peak monthly requirements, consideration shall be given, in making determinations of responsibility, to the bidder's ability to meet these peaks, as contrasted with his ability to meet the average monthly requirements.

(b) FSS contracting officers shall submit proposed determinations of nonresponsibility to the appropriate Review Committee in accordance with § 5A75.201(c)(3) and § 5A-75.401(e). After review, the letter of rejection shall be issued promptly to the bidder. A memorandum to the Compliance Division transmitting a copy of the determination shall then be prepared for the signature of the Regional Director, FSS, or the Director, Procurement Operations Division, as appropriate. Copies of the memorandum and determination shall be distributed to each other FSS buying activity and the Director, Procurement Policy Division. If the basis for rejection includes lack of financial responsibility, copies shall be furnished to the Chief, Finance Division, in the appropriate regional accounting center or Director, Credit and Finance Division, Central Office, as appropriate.

and 5-1.310-10 and information obtained in the bidding or negotiation process. A responsibility determination may be made without obtaining a plant facilities report if the contracting officer is reasonably satisfied that the prospective contractor has the facilities and capacity to perform the proposed contract, considering the dollar value thereof and any critical aspects involved in the procurement. However, if the contracting officer needs additional information in order to eliminate any doubt he may have in this regard, a plant facilities report shall be requested as provided in (b), below. In the case of procurements of relatively large dollar value or which warrant special attention for other reasons (e.g., a special or critical item not previously produced by the prospective contractor), a plant facilities report shall be requested even though the contracting officer has available sufficient information to warrant a determination that the prospective contractor meets the standards in § 1-1.310-5(a) (2) and (3).

(b) Requests for a plant facilities evaluation shall be made on GSA Form 353, Plant Facilities Report. The buying activity making the request shall complete section I of GSA Form 353. Where there is a special reason for making the request, it should be stated in block 6 of the form. Any pertinent information on past performance or otherwise in the possession of the buying activity which would be helpful to Quality Control in making its evaluation should be noted in block 5 of the form.

(1) In the case of requests initiated in the Procurement Operations Division, the original and 2 copies of the GSA Form 353 shall be forwarded to the Central Office Quality Control Division with the following:

(i) Three copies of the invitation for bids;

(ii) Three copies of all pertinent information submitted by the bidder in his bid, including the bidder's offered delivery or shipping time and, where applicable, the bidder's indicated monthly production capacity (supply potential) (In lieu of extracting such information from the bid, copies of the bid or of

pertinent pages thereof may be furnished, if the latter method is more practical.):

(iii) Any pertinent correspondence between GSA and the bidder; and

(iv) Any other information the buying activity has which should be considered by the regional Quality Control Division in making the evaluation.

(2) In the case of requests initiated in a regional buying activity, the original and a copy of the GSA Form 353, together with two copies of the documents and information described in (i) through (iv) of § 5A-1.310-7(b) (1), above, shall be sent to the Quality Control Division in the GSA region in which the prospective supplier's plant is located. In addition, a copy of the GSA Form 353 and a copy of the documents and information described in (i) through (iv) of § 5A-1.310-7(b) (1), above, shall be forwarded to the Central Office Quality Control Division.

(3) A buying activity making an award to a bidder after a Quality Control Division has recommended in a plant facilities report that no award be made to that bidder shall promptly after award send a memorandum notice of the action taken and the reason for it to the appropriate Quality Control Division in accordance with (i) or (ii), below, as applicable.

(i) In the case of an award made by POD, the memorandum shall be sent to the Central Office Quality Control Division with a copy to the regional Quality Control Division which made the "no award" recommendation.

(ii) In the case of an award made by a regional buying activity, the memorandum shall be sent to the regional Quality Control Division which made the "no award" recommendation with a copy to the Central Office Quality Control Division.

§ 5A-1.311 Priorities, allocations, and allotments.

(a) General. Contracting officers should be familiar with regulations of the Business and Defense Services Administration, Department of Commerce.

(b) Application of ratings and symbols. The Department of Defense and

Atomic Energy Commission may apply authorized ratings or controlled materials order symbols to requisitions or purchase authorities submitted to GSA for stores stock or for items to be purchased by GSA for direct delivery.

(1) Stock replenishment requests for replacement of stock issued against such requisitions will show the applicable rating or symbol.

(2) When such authorized ratings or symbols appear on a purchase authority or stock replenishment request, the contracting officer shall indicate such ratings or symbols on related invitations for bids, contracts, and purchase orders.

(3) Purchase authorities to which authorized ratings or symbols are applicable shall be given preference over other purchase authorities.

§ 5A-1.315 Use of liquidated damages provisions in procurement contracts. § 5A-1.315-2

Policy.

Under ordinary circumstances, proper administration of Article 11, Default, of the General Provisions, Standard Form 32, should produce acceptable deliveries and obviate the necessity of using liquidated damage clauses. The use of liquidated damage clauses in supply contracts should be avoided except when prompt delivery is of unusual importance and knowledge of facts in connection with a specific transaction indicates the necessity therefor. Accordingly, liquidated damage clauses shall not be used without the prior approval of the Assistant Commissioner, Office of Procurement.

§ 5A-1.316 Time of delivery or perform

ance.

§ 5A-1.316-5 Time of delivery clauses.

(a) The following clauses represent modification of clauses contained in § 1-1.316-5 and the addition of one clause providing for "time of delivery of the essence".

(1) General. Except as provided in (b), below, contracting officers shall select the appropriate clause as set forth in (2), (3), and (4), below to provide timely delivery. Clauses set forth in (2) and (3) will cover most procurements. However, when justified, the "time of delivery of the essence" clause, (4), below, may be used.

(2) Time of delivery not a major factor in award. The following clause shall be used when a desired and maximum delivery date at destination is to be specified. Such date shall be expressed in number of days after receipt of order. (If a Notice of Award is used as the delivery order, the words "Notice of Award" may be substituted for "order"). The maximum time for delivery must be reasonable and possible of accomplishment by a large segment of the bidders and shall be based on the latest date by which delivery will meet needs of using or ordering activity.

TIME OF DELIVERY

The Government desires that delivery be made at destination within (Contracting Officer insert number of days) days after receipt of order.

Bidder shall insert in the appropriate blank below a definite number of days within which delivery will be made. If the bidder does not insert a delivery time, his bid shall be deemed to offer delivery in accordance with the Government's desired delivery stated above. Although time of delivery will not be a factor in determining awards, any bid offering a delivery time which exceeds (Contracting Officer insert number of days) days after receipt of order will be considered nonresponsive on the basis that the time for delivery offered is unreasonable.

Bidder's Proposed Delivery: days after receipt of order.

calendar

(3) Time of shipment not a major factor in award. In some instances because of multiple destinations or f.o.b. origin prices use of delivery time is not feasible and in lieu thereof a time for placing merchandise in transit must be used. Such time for shipment shall be expressed in a number of days after receipt of order. (If Notice of Award is used as delivery order, the words "Notice of Award" may be substituted for "order"). The maximum number of days to be allowed for shipment must be reasonable and possible of accomplishment under normal conditions by a large segment of the bidders. Under these conditions the following clause shall be used:

TIME OF SHIPMENT

The Government desires that shipment be made within (Contracting Officer insert number of days) days after receipt of order. Bidder shall insert in the appropriate blank below a definite number of days within which merchandise will be placed in transit.

86-088 O-68-9