those outlined in (b) of this § 1-4.11073. Section 1-4.1107-3(d) shall be cited as the authority for requesting this BML.

(e) Copies of the complete solicitation shall be forwarded to all known active bidders and those who respond affirmatively as a result of paragraph (a), (b), and (d) of this section.

§ 1-4.1107-41 [Reserved]

§ 1-4.1107-5 Restrictions on the use of simulation in the ADPE procurement process.

This section sets forth restrictions on the use of computer system simulation for ADPE procurement.

(a) A simulation input definition format shall not be used as the only means of describing data processing requirements in solicitation documents. Any such format shall be accompanied by a narrative description of the ADP objectives and workload and any available application logic diagrams.

(b) Solicitation documents shall not be structured in such a way as to require offerors/bidders to use a specific computer system simulator in order to offer/bid, but where offerors/bidders submit computer simulation as part of the bid, they shall be required to describe clearly the simulation used and the make and model of the computer on which the simulation was run.

(c) Offers shall not be considered to be nonresponsive or unacceptable solely on the basis of simulation results.

(d) Information concerning procedures for ADP simulation and computer performance evaluation services is in Subpart 101-32.14 of the FPMR.

(b) Nonmandatory ADP Schedule Contracts. (1) The existence of a nonmandatory ADP Schedule contract shall not preclude or waive the requirement for full and complete competition in obtaining ADPE, software, or maintenance services. In addition, the availability of these items under an existing nonmandatory ADP Schedule shall not preclude or otherwise detract from procuring components, including peripheral equipment of a system or augmenting an existing system from a number of different sources if this action will be in the best interests of the Government. Suitable equipment must be considered whether or not such equipment is on an ADP Schedule contract.

(2) Use of nonmandatory ADP Schedule contracts for the initial acquisition of ADPE is subject to the following:

(i) A purchase/delivery order may be placed against the ADP Schedule contract under terms of the contract provided that:

(A) the ordering agency has the necessary procurement authority (see 14.1103 and 1-4.1105),

(B) the order is within the maximum order limitation of the applicable ADP Schedule contract, and

(C) the procurement file is documented with the results of the synopsis action required in paragraph (b)(5) of this § 1-4.1107-6 and evidence that indicates use of the ADP Schedule contract including the method of acquisition (e.g., lease, purchase) is the lowest overall cost alternative available to the ordering agency, price and other factors considered.

(ii) Requirements shall be synopsized in accordance with paragraph (b)(5) of the § 1-4.1107-6.

(3) Use of nonmandatory ADP Schedule contracts for the continued lease or rental of an installed central processing unit (CPU) is subject to the following:

(i) Requirements shall be synopsized in accordance with paragraph (b)(5) of this § 1-4.1107-6, and

(ii) A specific delegation of procurement authority pursuant to § 1-4.1105 is obtained before issuing an order to renew the lease of any CPU where the schedule purchase price exceeds

$50,000 when such CPU is available from a source other than the schedule contract.

(4) Use of nonmandatory ADP Schedule contracts for the conversion from lease to purchase of installed ADPE is subject to the following:

(i) Requirements shall be synopsized in accordance with paragraph (b)(5) of this § 1-4.1107-6.

(ii) A specific delegation of procurement authority pursuant to § 1-4.1105 is obtained before issuing an order to purchase such ADPE when identical, i.e., specific make and model, or similar, i.e., plug-to-plug compatible equipment, is available from a source other than the schedule contract.

(5) ADPE requirements referred to in paragraphs (b)(2), (b)(3) and (b)(4) of this § 1-4.1107-6 shall be synopsized in the "Commerce Business Daily" (CBD) in accordance with Subpart 11.10, prior to placing an order(s) under an ADP Schedule contract. This requirement shall be followed notwithstanding the exemption in § 1-1.10032(a)(5).

(i) Synopsis shall be published sufficiently in advance of placing the order to permit potential suppliers to demonstrate their ability to satisfy the Government's requirement (See § 11.1003-6). When alternate sources of supply are not expected to be available, the synopsis may be in the form of a notice of intention to procure, without establishment of a solicitation package and due date. If no affirmative responses are received from potential offerors by the due date for responses to the notice, the procurement file shall be so documented and no further use of the CBD is required. If affirmative responses (other than sources available under the ADP

Schedule contract) are received, or if the availability of competition is known, synopsizing of the procurement is required (see also § 1.4.1107-2).

(ii) Publication of contract award information in the CBD is not required when an order is placed against an ADP Schedule contract, whether or not after a competitive solicitation, since the scheduled contract was publicized in accordance with § 1-1.1004.

(6) If ADPE, software, or maintenance services are procured under an

GSA makes selected ADPE and software available to agencies through requirements-type contracts that provide for substantially lower equipment and software costs. Where ADPE and software which will satisfy the user's requirements are available from GSA requirements-type contracts, this

source shall be used by all agencies as the primary source of supply in accordance with the provisions of these contracts. Copies of the contracts (not contractor's price lists) are distributed to recipients of the schedule FSC Group 70, Part I. Additional copies are available from the General Services Administration (8BR), Building 41, Denver Federal Center, Denver, CO 80225. Some of these requirementstype contracts specify that GSA is responsible for the allocation of the ADPE or software. In these cases authorization shall be obtained from General

Services Administration (CDP), Washington, D.C. 20405 before placing an order against the requirements-type contract. Prior to acquiring ADPE or software that is functionally similar to the ADPE or software on a requirements-type contract from another source, the agency shall (a) document the procurement case file indicating why the requirements-type contract could not be used, and (b) obtain a delegation of procurement authority from GSA if the procurement falls outside the scope of §§ 14.1103-1 or 1-4.1103-2.

[42 FR 43079, Aug. 26, 1977] § 1-4.1107-8 Industry

specifications.

review of ADP

Maximum advantage shall be taken of the latest technological advances in the ADP field to ensure that the Government's data processing require

ments are met at the lowest possible overall cost. The ADP industry can perform a useful service during the early stages of the procurement process by ensuring that the specifications are clearly stated and readily understandable and that they will permit the Government to take full advantage of current ADP technology. Accordingly, an agency, at its discretion, may provide offerors/bidders a copy of the proposed specifications prior to release of the formal solicitation. Only those offerors/bidders who are scheduled to receive a copy of the solicitation under the provisions of § 1-4.11073 should be furnished a copy of the proposed specifications. These offerors/bidders should be given a minimum of 30 days in which to submit their written comments. The agency should evaluate the comments received and shall take such action as they determine to be appropriate. The Government's action on these comments shall be final.

§ 1-4.1107-9 Handling of late bids, proposals, modifications, and withdrawals. (a) Late bids, modifications of bids, or withdrawals of bids shall be handled in accordance with the procedures set forth in Subpart 1-2.3 of the FPR or Section II, Part 3 of the ASPR.

(b) Late proposals and modifications shall be handled in accordance with the provisions of §§ 1-3.802-1 or 13.802-2 of the FPR or paragraph 3-506 of the ASPR when applicable.

(c) The records set forth in § 1-2.3038 of the FPR or paragraph 2-303.4 of the ASPR, if available, shall be included in the purchasing office files with respect to each late bid, modification of bid, or withdrawal of bid. Similar records, if available, shall be included in the purchasing office files with respect to late proposals, modifications of proposals, or withdrawals of proposals.

§ 1-4.1107-10 Use of data systems specifications.

Data systems specifications are the preferred method for expressing the user's requirements in solicitation documents. The data systems specification may be augmented with equip

ment characteristics and elements of performance when necessary to reflect the user's needs.

§ 1-4.1107-11 Use of other types of specifications or purchase descriptions.

If data systems specifications cannot be used to describe the user's complete requirement, other types set forth below may be used. However, to minimize limitations on competition, other types of specifications or purchase descriptions shall be used in the order of precedence as listed:

(a) Equipment performance requirements. (Also see 1-4.1107-8.);

(b) Plug-to-plug compatible purchase descriptions;

(c) Brand name or equal purchase descriptions. (Also see 1-1.307-4 and 11.307-5.); or

(d) Specific make and model purchase description. (This type of purchase description limits competition to the extent that its use shall be deemed a noncompetitive procurement and must be justified.)

§ 1-4.1107-12 [Reserved]

§ 1-4.1107-13 Evaluation factors.

To enable an offeror/bidder to prepare a proposal or quotation, the solicitation shall identify all the evaluation factors that are to be considered. In addition to the mandatory requirements, desirable features shall be included where applicable. When desirable features are included in a solicitation, relative weights (expressed in dollar values, or points, or any other reasonable indicators which describe the relative importance) shall be assigned to the features.

§ 1-4.1107-14 Use of standard clauses.

The standard clauses in § 1-4.1108 shall be inserted in solicitation documents in accordance with the instructions set forth for each clause listed.

§ 1-4.1107-15 Conversion rental credits.

Conversion rental credits applicable to installed ADPE during the period of conversion to new equipment shall not be considered as an evaluation factor in the procurement of ADPE. Conversion rental credits are not the same as, and should not be confused with, pur

chase option credits. The latter, when applicable, are to be considered in the evaluation.

§ 1-4.1107-16 Software procurements.

Agencies shall strive to obtain the following objectives:

(a) Avoid restrictive clauses that limit the use of the software to a specific computer system, installation, or organization;

(b) Incorporate a clause that will permit other Government agencies to obtain the software under the contract being negotiated;

(c) Obtain additional quantity discounts, should any other Government agency acquire the same software

under the contract in question; and

(d) Ensure that the vendor is contractually obligated to support and maintain the software in subsequent years.

§ 1-4.1107-17 Procurement of supplies.

Specific purchase programs established by GSA include electronic data processing (EDP) tape, instrumentation tape (wide and intermediate band), tabulating machine cards, and marginally punched continuous forms. Instructions for ordering EDP and instrumentation tapes are in § 10126.508 of the FPMR; for tabulating machine cards, in § 101-26.509 of the FPMR; and for marginally punched continuous forms, in § 101-26.703 of the FPMR.

§ 1-4.1107-18 Contractor leased ADPE.

(a) Notwithstanding the provisions of § 1-4.1101, when leased ADPE is used on Government contract work and the total cost of leased ADPE is absorbed by the Government under a cost-reimbursement type contract, the contracting officer shall require the contractor to include a provision in the rental contract stating that the Government will option to utilize any purchase or other benefits earned through rental payments.

obtain for the Government, where possible, the right to accrued purchase credits, if the contractor elects not to exercise his purchase option. Accordingly, negotiation objectives for costreimbursement type contracts shall include the following when less than 100 percent of the cost of the equipment is absorbed by the Government.

(1) The contractor should be encouraged to incorporate in his ADP equipment lease the right to assign accrued purchase credits to the Government;

(2) The contracting officer should obtain for the Government, if possible, the right of first refusal on accrued purchase credits, if the contractor elects not to exercise his purchase option; and

(3) A 60-day advance notice should be provided to the Government when the contractor proposes to terminate his ADP equipment lease if the Government has been granted rights to accrued purchase credits.

(c) If the Government has been granted rights to purchase credits in accordance with (b) above and the contractor elects not to exercise his purchase option, the ADPE shall be reported through agency or GSA reutilization channels as set forth in Subpart 101-32.3 of the FPMR.

(d) If in accordance with (a) and (b) of this § 1-4.1107-18, the Government elects to exercise an option to purchase the leased ADPE, it is in the nature of a procurement. Accordingly, the applicable provisions of this subpart relating to the acquisition of ADPE would apply.

§ 1-4.1107-19 Assistance by GSA.

Assistance in any phase of the procurement process covered by this Subpart 1-4.11 shall be obtained by contacting the General Services Administration (CDP), Washington, D.C.

(b) When leased ADPE is used on Government contract work under a cost-reimbursement type contract and less than 100 percent of the cost of the equipment is absorbed by the Government, the contracting officer should

if the dollar value involved is between $10,000 and $50,000:

(a) A copy of the contract; or

(b) A copy of the purchase/delivery order issued against a GSA ADP Schedule contract.

§ 1-4.1108 Standard clauses.

The following clauses shall be used as specified in solicitations and contracts for ADP.

§ 1-4.1108-1 Late bids, proposals, modifications, and withdrawals.

(a) The late bids, modifications of bids, or withdrawal of bids clause set forth in § 1-2.201(a)(31) of the FPR or paragraph 7-2002.2 of the ASPR shall be inserted in all invitations for bids on ADPE, software, maintenance services, or supplies.

(b) The late proposals, modifications or proposals, and withdrawals of proposals clause set forth in § 1-3.802-1(a) of the FPR or paragraph 7-2002.4 of the ASPR shall be inserted in all solicitation documents for negotiated procurements for ADPE software, maintenance services, or supplies except that the alternate clause set forth in § 1-3.802-2(b) of the FPR may be used in those instances in which overriding mitigating circumstances clearly make use of the alternate clause in the best interest of the Government; and

(1) The head of any agency or his designated representative authorizes use of the alternate clause for the individual procurement in question; and

(2) Prior specific approval is obtained from the Commissioner, Automated Data and Telecommunications Service, Washington, D.C. 20405.

§ 1-4.1108-2 Limitation of liability.

The following clause shall be used in all solicitations and contracts for ADPE, software, maintenance, and related supplies and services unless the contracting officer determines that a higher degree of protection is in the best interest of the Government.

WARRANTY EXCLUSION AND LIMITATION OF DAMAGES

Except as expressly set forth in writing in this agreement, or except as provided in the clause entitled, "Commitments, Warranties,

and Representations," if applicable, and except for the implied warranty of merchantability, there are no warranties expressed or implied. In no event will the Contractor be liable to the Government for consequential damages as defined in the Uniform Commercial Code, Section 2-715, in effect in the District of Columbia as of January 1, 1973; i.e.:

Consequential damages resulting from the seller's breach include:

(a) Any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and

(b) Injury to person or property proximately resulting from any breach of warranty.

(End of Clause)

§ 1-4.1108-3 Contractor representation.

The following clause shall be used in all solicitations and contracts for ADPE when the Government's requirement is set forth in the form of a data system specification and the value of the contract is expected to exceed $100,000:

CONTRACTOR REPRESENTATION

Unless the Contractor expressly states otherwise in his proposal, where functional requirements are expressly stated as part of the requirements of this solicitation, the Contractor, by responding, represents that in its opinion the system proposed is capable of meeting those requirements. However, once the functions have been demonstrated or put to use on the delivered system, Contractor responsibility under this clause ceases. In the event of any inconsistency between the detailed specifications and the functional specification contained in the solicitation, the former will control.

(End of Clause)

§ 1-4.1108-4 Fixed price options.

When the Government has firm requirements for ADPE, software, or maintenance services which exceed the basic contract period (and/or quantity) to be awarded, but due to the unavailability of funds the option(s) cannot be exercised at the time of award of the basic contract (although there is a reasonable certainty that funds will be available thereafter to permit exercise of the options); realistic competition for the option periods (and quantity) may be impracticable once the initial contract is award