13 of the terms and conditions of the Invitation for Bids as printed on the reverse side of these forms. [18 F. R. 2500, Apr. 29, 1953] § 2.204-5 Removal of names from bidders' mailing lists. Removal of names from bidders' mailing lists shall be accomplished as provided in this section. Purchasing offices and activities shall provide for periodic review to insure conformance with the provisions of this section. (a) The name of each supplier who fails to respond to an invitation for bids or pre-invitation notice may be removed from the bidders' mailing list without notice to the supplier, but only for the item or items involved in the invitation or pre-invitation notice. Where a supplier fails to respond to two consecutive invitations for bids or pre-invitation notices, his name shall be removed from the bidders' mailing list to the extent indicated above, except that, in individual cases, suppliers thus failing to respond may be retained on a bidders' mailing list if such retention is determined to be in the best interest of the Government. A response to an invitation for bids or pre-invitation notice shall be deemed to include both actual bids and written requests from nonbidding suppliers for retention on the bidders' mailing list. (b) The names of suppliers who have been (1) debarred from entering into Government contracts or (2) otherwise determined to be ineligible to receive an award of a Government contract, including ineligibility by reason of suspension or other disqualification, shall be removed from the bidders' mailing lists to the extent required by such debarment or determination of ineligibility. [18 F. R. 2500, Apr. 29, 1953] § 2.204-6 Reinstatement on bidders' mailing lists. Suppliers whose names have been removed from bidders' mailing lists may be reinstated upon their request and, where required, by filing a new application on Standard Form 129: Provided, That no supplier who has been debarred or declared to be ineligible shall be reinstated until after termination of the period of his debarment or ineligibility. [18 F. R. 2500, Apr. 29, 1953] § 2.204-7 Excessively long bidders' mailing lists. When the number of on a bidders' mailing list is names deemed to be excessive in relation to a specific procurement, such methods as (a) rotation of bidders' mailing lists, (b) use of pre-invitation notices, or (c) otherwise determined to be advantageous in this respect, may be employed to provide a reduced list of names for use in making the specific procurement. (But see § 1.302-4 (b) (3) of this subchapter with respect to firms located in labor surplus areas.) [19 F. R. 687, Feb. 5, 1954] § 2.205 "Set-asides" for firms in labor surplus areas. § 2.205-1 General. When "set-asides" are used in compliance with $1.302-4, of this subchapter, the procedures set forth in this section shall be applicable. [19 F. R. 687, Feb. 5, 1954] § 2.205-2 Determination of the quantity of "set-aside". When the use of "set-asides" is deemed appropriate, procuring activities shall determine the optimum quantity which would probably result in the most favorable price, considering the manufacturing processes involved and the quantity required for an economical production run. Invitations for bids shall be issued for not less than such optimum quantity. The resulting "set-aside" shall also not be less than such optimum quantity. After award of the quantity not set aside, procurement of the "set-aside" shall be effected by negotiation pursuant to § 3.219 of this subchapter. [19 F. R. 687, Feb. 5, 1954] § 2.205-3 Special conditions to be inserted in invitations for bids. Whenever it has been determined to set aside a quantity of a procurement in accordance with 1.302-4, of this subchapter, the Invitation for Bids covering procurement of the items not set aside shall provide that: (a) "Set-asides" in aid of labor surplus areas may be utilized. (b) The right to participate in subsequent negotiation for any "set-asides" shall be conditioned upon the submission of a bid upon the items not set aside at a unit price within 120 percent of the highest award made with respect to quantities not set aside. [19 F. R. 687, Feb. 5, 1954] § 2.206 Synopses of proposed procurements. made in the continental United States, which may result in an award in excess of $10,000, will be publicized promptly in the Department of Commerce publication "Synopsis of U. S. Government Proposed Procurement, Sales and Contract Awards", except the following: (a) Procurement of research and development. (b) Procurement of studies or surveys. (c) Procurement of perishable subsistence supplies. (d) Sole source procurement. (e) Procurement where competition is known to be limited by patents, copyrights, or secret processes. (f) Procurement which must be made too quickly to permit prospective contractors, dependent on the Department of Commerce Synopsis for information, to obtain invitations for bids or requests for proposals in time to prepare and submit their bids or proposals. (g) Procurements not in the above categories which nevertheless must be accomplished under such circumstances or conditions as to clearly preclude any benefit to industry or the Government by such publication. Justification in each case, for not publicizing the procurement under this exception, shall be in writing, approved by the chief of the purchasing office or his designee, and made part of the procurement file. [19 F. R. 7482, Nov. 20, 1954] § 2.206-2 Preparation and transmittal of synopses. Subject to the requirements of § 2.206-3, purchasing offices shall prepare and forward synopses of proposed procurements as follows: (a) All synopses shall be forwarded to the Department of Commerce simultaneously with or at the earliest practicable time prior to issuance of invitations for bids or requests for proposals, as is deemed most appropriate. (b) Each synopsis shall include the following: (1) The identification number of the synopsis (synopses shall be numbered consecutively); (2) The name and address of the purchasing office; (3) A clear and concise description of the supplies or services to be procured, sufficient for understanding by interested parties, which will include, as appropriate, abbreviations, commonly used names of supply items, basic materials from which fabricated, general size or dimensions, citation to specification or drawing numbers, or other identifying data; (4) The quantity to be procured; (5) The invitation or request number, with invitations for bids being further identified with the letter "B" and requests for proposals with the letter "Q"; and (6) The designation of the opening date of bids or the last date for submission of proposals or quotations, or, if the synopsis is published prior to issuance of the invitation for bids or request for proposals, the synopsis shall include a statement to the effect that requests for such invitations or proposals should be received not later than 10 days from the date of publication of such synopsis so as to enable the purchasing office to mail such invitation for bids or request for proposals directly to the inquirer at the time of issuance thereof. (c) In addition to the foregoing, where the proposed procurement is to be effected in accordance with a small business joint determination (small business joint determinations are made by assigned representatives of the Small Business Administration and the contracting office to earmark all or part of a specific procurement for exclusive participation by small business concerns), the synopsis shall (1) in those cases where there is a 100 percent small business joint determination, state that "The proposed procurement(s) listed herein is (are) under 100 percent small business joint determination", or (2) in those cases where there is a partial small business joint determination, state that "An additional quantity of is being reserved for small business under a partial joint determination”. (d) Synopses shall be teletyped to the following address at the end of each day, in the manner prescribed by Departmental procedures: Synopsis, Commerce Department, Field Service, Chicago, Ill. (e) A reasonable number of copies of each invitation for bids and request for proposals publicized in the Department of Commerce Synopsis, including data and specifications, shall be maintained by the issuing office for supplying requests therefor. [19 F. R. 7482, Nov. 20, 1954] § 2.206-3 Responsibility of Small Business Specialists. The Small Business Specialists in each purchasing office are responsible for screening all proposed procurements to assure that prompt action is taken with respect to publicizing such procurements through the Department of Commerce Synopsis in accordance with the requirements of § 2.206. When determined appropriate by the Small Business Specialist, and approved by the Contracting Officer, a proposed procurement may be publicized in the Department of Commerce Synopsis even though it is excepted from such requirement of § 2.206-1. In those offices where no Small Business Specialist is assigned, the Contracting Officer or other designated representative will be assigned the responsibilities of the Small Business Specialist under this section. [19 F. R. 7482, Nov. 20, 1954] Bids § 2.301 Method of submission. shall be filled out, executed, and submitted by each bidder in accordance with the instructions accompanying the appropriate bid form. Neither telegraphic nor alternative bids shall be considered unless authorized by the invitation for bids or its accompanying papers. § 2.302 Time of submission. Bids shall be submitted in sufficient time to reach the designated office prior to the time fixed for opening. Bids received after the time fixed for opening are late bids; and the exact date and hour of mailing such bids, as shown by the cancellation stamp or by the stamp of an approved metering device shall be recorded. Such late bids shall be considered: Provided, They are received before the award has been made: And provided, The failure to arrive on time was due solely to a delay in the mails for which the bidder was not responsible; other wise, late bids shall not be considered but shall be held unopened until the time of award and then returned to the bidder, unless other disposition is requested or agreed to by the bidder. § 2.303 Modification or withdrawal of bids. Bids may be modified or withdrawn, at any time prior to the time fixed for opening thereof, by written or telegraphic notice received prior to the time fixed for opening. After the opening of bids, no bid may be modified (except as provided in §§ 2.404 and 2.405), or withdrawn unless such modifications or withdrawal is received before the award has been made and either (a) failure of the modification or withdrawal to arrive prior to the time fixed for opening was due solely to a delay in the mails for which the bidder was not responsible or (b) modification is in the interest of the Government and not prejudicial to the other bidders. SUBPART D-OPENING OF BIDS AND AWARD OF CONTRACT SOURCE: $2.400 to 2.407 appear at 15 F. R. 8029, Nov. 23, 1950, except as otherwise noted. § 2.400 Scope of subpart. This subpart deals with (a) the opening and recording of bids, (b) the rejection of bids, (c) informalities, irregularities, and mistakes in bids, and (d) the evaluation of bids and the awarding of contracts. § 2.401 Opening of bids. All bids received prior to the time of opening will be kept secure and unopened until the time of opening (except that an unidentified bid may be opened solely for purposes of identification: Provided, That such bid shall be resealed immediately and that no information obtained therefrom shall be disclosed), whereupon they shall be publicly opened and, when practicable, read aloud by the Government official whose duty it is to open the bids. Whereas it is the primary responsibility of bidders to prepare their bids correctly and completely, nevertheless it is the duty of the Contracting Officer, after the opening of bids and prior to award, to examine all bids for minor informalities or irregularities and for obvious or apparent mistakes (as referred to in § 2.404 and §§ 2.405 to 2.405-3, respectively). The original bids shall not be allowed to pass out of the hands of an official of the Government, except when a duplicate bid cannot be made available for public inspection, and then only under the immediate supervision of an official of the Government and under conditions which preclude the possibility of a substitution, addition, deletion, or alteration in the bid. [16 F. R. 10980, Oct. 30, 1951] § 2.402 Recording of bids. The names of the bidders and the prices bid shall be entered in an abstract or record which 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 opening date, invitation number, general description of the material, lot number, and total bid price. As soon as all bids have been opened and read, the official in charge shall make the certification in the record in accordance with procedures prescribed by each respective Department. § 2.403 Rejection of bids. Any bid which does not conform to the essential requirements of the invitation for bids shall be rejected: Provided, That any such bid may be considered when in the interest of the Government and not prejudicial to the other bidders. All bids may be rejected by the Contracting Officer (a) when rejection is in the interest of the Government, or (b) when he finds in writing that the bids are not reasonable, or were not independently arrived at in open competition, or are collusive, or were submitted in bad faith: Provided, That, if negotiation is to be used after any such rejection of all bids, the requirements of § 3.215 of this subchapter must be satisfied. The originals of all rejected bids, and any written findings with respect to rejection, shall be preserved with the papers relating to the proposed purchase. Reports of possible violations of the antitrust laws or of any other Federal criminal statutes relating to procurement shall be made by each respective Department in accordance with procedures prescribed by that Department: Provided, That any evidence of bids not independently arrived at shall be forwarded to the Department of Justice. § 2.404 Minor informalities or irregularities in bids. The Contracting Officer shall give to the bidder an opportunity to cure any deficiency resulting from a minor informality or irregularity in a bid, or in the alternative, when it is not to the disadvantage of the Govern ment, may waive any such deficiency when time does not permit the curing thereof. Illustrative examples of minor informalities or irregularities are the following: Failure to furnish required catalogs, cuts or descriptive data; failure to furnish information required by the Invitation for Bids concerning such matters as (a) number of employees and (b) place of manufacture. [17 F. R. 5646, June 24, 1952] § 2.404-1 Failure to furnish a bid bond. Under certain circumstances, the failure to furnish a bid bond may be treated as a minor informality or irregularity in the bid. Such a deficiency may be cured or waived where it did not result from the inability of the bidder to obtain a bid bond because of its financial status or some similar reason, but was due to inadvertence or other excusable cause. The correction or waiver of such deficiency should be permitted only after a thorough investigation has been made of the facts pertinent to such deficiency and an excusable cause has been clearly established. [17 F. R. 5646, June 24, 1952] $ 2.405 Mistakes in bids. $2.405-1 Obvious or apparent mistakes of a clerical nature. Any clerical mistake obvious or apparent on the face of a bid may be corrected by the Contracting Officer prior to award: Provided, There has first been obtained from the bidder, in response to a request for verification of the bid, a statement as to any such mistake therein. Illustrative examples of such obvious or apparent mistakes are the following: obvious error in placing decimal point; obvious discount errors (for example: 1 percent 10 days, 2 percent 20 days, 5 percent 30 days); erroneous quotations of a lower price f. o. b. destination than f. o. b. factory. § 2.405-2 Mistakes disclosed after opening and prior to award other than obvious or apparent mistakes of a clerical nature. (a) The Military Departments are authorized to make the following administrative determinations in connection with mistakes in bids, other than obvious or apparent clerical mistakes, alleged after opening of bids and prior to award: (1) Where the bidder requests permission to withdraw a bid and clear and convincing evidence establishes the existence of a mistake, a determination permitting the bidder to withdraw his bid. (2) Where the bidder requests permission to correct a mistake in his bid and clear and convincing evidence establishes both the existence of a mistake and the bid actually intended, a determination permitting the bidder to correct the mistake. If the evidence is clear and convincing only as to the mistake, but not as to the intended bid, a determination permitting the bidder to withdraw his bid. (3) Where the evidence is not clear and convincing that the bid as submitted was not the bid intended, a determination requiring that the bid be considered for award in the form submitted. (b) Authority for making the determinations set forth in paragraph (a) of this section may be delegated, without power of redelegation, as set forth below: (1) Department of the Army: To the Chief, Purchases Branch, Deputy Chief of Staff for Logistics; Chief of Engineers; Chief of Ordnance; The Quartermaster General. (2) Department of the Navy: To the Assistant Chief for. Construction and Real Estate, Bureau of Yards and Docks; the Assistant Chief for Purchasing, Bureau of Supplies and Accounts. (3) Department of the Air Force: To the Director, Procurement and Production, Headquarters, Air Materiel Command. (c) Each proposed determination shall be reviewed by legal counsel within the Department concerned prior to issuance. (d) In the case of any suspected or alleged mistake in bid other than an obvious or apparent clerical mistake on the face of the bid (§ 2.405-1), the Contracting Officer shall obtain from the bidder, prior to award, either a verification of the bid or evidence in support of the mistake. If the bidder verifies the bid, or fails or refuses to furnish evidence in support of a suspected or alleged mistake, no administrative determination shall be necessary, and the Contracting Officer shall consider the bid for award in the form submitted. (e) If the bidder furnishes evidence in support of an alleged mistake, the Contracting Officer shall refer the case to the appropriate centralized authority, together with the following data: (1) A signed copy of the bid involved; (2) A copy of the invitation for bids and any specifications or drawings relevant to the alleged mistake; (3) An abstract or record of the bids received; (4) A written request by the bidder to withdraw, or modify, the bid, together with the bidder's written statement and supporting evidence (such as work sheets or other data used in preparing the bid) of the existence of the mistake and the manner in which it occurred, and, if modification is sought, supporting evidence of the intended bid; (5) A written statement by the Contracting Officer (i) describing the supplies or services involved, (ii) stating the expiration date of the bid in question and of the other bids submitted, (iii) specifying how and when the mistake was alleged, (iv) summarizing the evidence submitted by the bidder, (v) submitting, in cases where only one bid was received, the most recent contract price for the supplies involved, or, in the absence of a recent contract for the item, the Contracting Officer's estimate of a fair price for the item, and (vi) submitting any additional evidence considered pertinent. Such written statement also shall recommend that (a) the bid be considered for award in the form submitted, or (b) the bidder be authorized to withdraw the bid, or (c) the bidder be authorized to modify the bid. When time is of the essence because of the expiration of bids or otherwise, the Contracting Officer may refer the case by dispatch or telephone to the designated centralized authority. (f) Nothing contained in this section shall be construed to deprive a military department of the right to submit a doubtful case to the Comptroller General for an advance decision. (g) A signed copy of the administrative determination made in accordance with paragraph (a) of this section shall accompany the General Accounting Office copy of the contract awarded whenever such determination authorized withdrawal or modification of a bid. Each military department shall maintain a record of all its administrative determinations made in accordance with paragraph (a) of this section, together with a complete statement of the facts involved and the action taken in each case. [19 F. R. 7483, Nov. 20, 1954] |