tain all the representations and other information required by the Invitation for Bids together with a statement that the bidder agrees to all the terms, conditions and provisions of the invitation. Failure to furnish, in the telegraphic bid, the representations and information required by the Invitation for Bids may necessitate rejection of the bid. Signed copies of the Invitation for Bids must be furnished in confirmation of the telegraphic bids. § 1202.203 § 1202.203-1 Mailing or delivering to prospective bidders. Methods of soliciting bids. Contracting officers will determine the extent to which distribution of the invitations for bids will be made among prospective qualified bidders. Invitations for bids generally are issued by the Contracting Officer, but may be issued by an agency or an individual authorized by him. § 1202.203-3 Publicity in newspapers and trade journals. Paid advertisements. of this subchapter.) § 1202.204 (See § 1201.1005 Office of permanent record. § 1202.204-50 Record of contract ac tions. The policy and procedure for the organization and maintenance of contract files is set forth in § 1201.308 of this subchapter. Subpart C-Submission of Bids Subpart D-Opening of Bids and § 1202.403 Recording of bids. § 1202.403-50 Preparation of abstract of bids. Since the copy of the abstract on unclassified bids is exhibited to the public, care will be exercised in making the entries. Information, such as debarment, failures to meet minimum standards of responsibility, or apparent collusion of bidders, will not be entered on the abstract of bids but will be the subject of a separate document. § 1202.406 Mistakes in bids. (a) [§ 2.406-3 (b) of this title. Other mistakes.] Authority to make the determination set forth in § 2.406-3 (a) (1) of this title is hereby delegated to purchasing activities having assigned counsel without power of redelegation. Requests for the determinations required by § 2.406-3 (a) (2), (3), and (4) of this title will be forwarded through Heads of Procuring Activities to the Counsel, DSA. (b) [§ 2.406-3(e) (1) of this title.] The action taken to verify bids must be sufficient to either (i) reasonably assure the contracting officer that the bid as confirmed is without error or (ii) elicit the anticipated allegation of a mistake by the bidder. To insure that the bidder concerned will be put on notice of a mistake suspected by the contracting officer, the bidder should be advised, as is appropriate to the particular circumstances of the case, of (1) the fact that his bid is out of line with the next low or with the other bids, (2) important or unusual characteristics of the specifications, (3) changes in requirements from previous purchases of a similar item, or (4) such other data as may be proper for disclosure to the bidder as will give him notice of the suspected mistake. (c) [$ 2.406-3 (f) of this title. Requests for advance decisions.] Requests for advance decisions by the Comptroller General shall be forwarded to the Counsel, DSA. (d) [§ 2.406-3(g) of this title. Records.] A copy of the administrative determination permitting withdrawal of a bid will be forwarded to the Counsel, DSA when executed. § 1202.406-4 Disclosure of mistakes after award. (a) [§ 2.406-4(c) of this title.] The authority granted by § 2.406–4(b) of this title may be exercised by the Head of a Procuring Activity, his Deputy or Counsel. (b) [§ 2.406-4(f) of this title.] A copy of the determination and finding will be attached to all copies of the contract modification and a copy of the modification will be forwarded to the Counsel, DSA when executed. § 1202.406-50 Actions referred to higher authority. Mistakes in bids requiring action by higher authority or mistakes in bids in which the Head of the Procuring Activity desires that the determinations be made by higher authority shall be forwarded to the Counsel, DSA § 1202.406-51 Record of actions taken. Contracting officers will insure that the contract file is fully documented to (a) Reasonableness of bid prices. In the evaluation of bids and prior to making an award, contracting officers will insure that the prices to be accepted are fair and reasonable on the basis of valid criteria, such as, but not limited to: Prices paid on past procurements; price trend information from the daily press, trade, or Government publications; current market prices for comparable quantities; extent of competitive pricing; and cost analysis of similar procurements. The contract file will be documented to reflect the actions taken to determine the reasonableness of the bid prices. (b) Evaluation of bids. When the contracting officer determines that it is necessary to consider the advantages or disadvantages to the Government that might result from making multiple awards, the following provisions will be included in the Schedule or other appropriate place in the invitation for bids. EVALUATION OF BIDS (JULY 1962) In addition to other factors, bids will be evaluated on the basis of advantages or disadvantages to the Government that might result from making multiple awards. For the purpose of making this evaluation, it will be assumed that the sum of $50 would be the administrative cost to the Government for issuing and administering each contract awarded under this invitation, and individual awards will be for the items and combination of items which result in the lowest aggregate price to the Government, including such administrative costs. § 1202.407-6 Equal low bids. (See also § 1.111 of this title and § 1201.111 of this subchapter.) Whenever identical or equal bids are received pursuant to formal advertising, and, in the opinion of the contracting officer, are indicative of collusive bidding, follow-the-leader pricing, related low bids, division of business, uniform estimating systems, or other practices designed to eliminate competition or to restrain trade, a report of the facts and pertinent information available which might tend to establish possible violation of the antitrust laws shall be forwarded to The Counsel, DSA. § 1202.407-8 Purchases of patented items when a patent indemnity clause is to be included in the contract. The principle stated in § 2.407-8 of this title applies also where in accordance with § 9.103 of this title the Patent Indemnity Clause is not to be included in the contract. (See Decision B-139585, 2 July 1959, of the Comptroller General.) § 1202.407-9 Protests against award. (a) Protests before award. Where it is known that a protest against the making of an award has been lodged with a higher headquarters or the Comptroller General, no award shall be made until the matter is resolved unless the determination required by § 2.407-9(b)(3) of this title has been made by the contracting officer and approved by The Counsel, DSA. Protests submitted for final resolution to levels of authority higher than the Head of a Procuring Activity shall be forwarded to The Counsel, DSA. The file will include: (1) A signed statement from the person making the protest setting forth the facts on which the protest is based and any additional supporting evidence; (2) A signed statement when relevant, from other persons or bidders affected by or involved in the protest, setting forth the facts with respect to their position in the matter and any additional supporting evidence; (3) A copy of the bid submitted by the protesting bidder and a copy of the bid of the bidder who is being considered for award, or whose bid is being protested; (4) A copy of the invitation for bids including where practicable pertinent specifications relevant to the protest; (5) A copy of the abstract of bids; (6) Any other documents which are relevant to the protest and; (7) A statement signed by the contracting officer setting forth his findings, actions, and recommendations in the matter together with any additional evidence or information deemed necessary in determining the validity of the protest. If the award was made pending resolution of the protest, the contracting officer's statement will include the determination prescribed in § 2.407-9 (b) (3) of this title. (b) Protests after award. Where a protest is received after the award of the contract the following action will be taken: (1) Where it reasonably appears that the award may be held invalid, and a delay in receiving the supplies or services is not prejudicial to the Government's interest, the contracting officer should seek a mutual agreement with the successful bidder to "stop work" on a no-cost basis. (2) If the contractor refuses to enter into such a mutual agreement, the head of the procuring activity may direct the contracting officer to issue a "stop work" order unless the head of the procuring activity determines that receipt of the supplies or services is so urgent that such an order would be prejudicial to the interest of the Government. (3) Where guidance from higher authority on the withholding of contractor performance is necessary the matter will be submitted to the Counsel, DSA. (4) Where it is known by the purchasing activity that a protest after award has been lodged directly with the Comptroller General, the documents required by (a) of this section will be forwarded to the Counsel, DSA. § 1202.408 Information to bidders. § 1202.408-1 Unclassified awards. When the workload does not permit the furnishing of information requested by unsuccessful bidders they will be advised that a copy of the Abstract of Bids is available for inspection at the purchasing office. § 1202.450 Distribution of bids and ab stract. The original of all rejected and unsuccessful bids, a copy of the accepted bid, and a copy of the abstract of bids shall be retained by the contracting officer. All rejected bids shall be kept available for inspection by the duly authorized representatives of the General Accounting Office and will be forwarded to that office upon request therefor, when required in individual cases. § 1202.451 Requests for decision by the Comptroller General. Where a decision by the Comptroller General is desired on procurement or disposal matters such as mistakes in bids, remission of liquidated damages, reformation of contracts or other contract issues, the request will be forwarded to the Counsel, DSA. Each case submitted for a Comptroller General decision will be accompanied by an administrative report which shall include a summary of the matter at issue, the recommendation of the procuring activity, and all documents and information deemed pertinent to the issue. Subpart E-Two-Step Formal PART 1203-PROCUREMENT BY Subpart A-Use of Negotiation [Reserved] Subpart B-Circumstances Permitting Negotiations Sec. 1203.200 Scope. 1203.200-50 Negotiation techniques. 1203.202 Public exigency. 1203.202-2 Application. 1203.202-50 Contract review by DSA. 1203.210 Supplies or services for which it is impractical to secure competition by formal advertising. 1203.210-50 Contract review by DSA. Subpart C-Determinations and Findings 1203.304 Determinations and findings by a contracting officer. 1203.304-50 Determinations and findings for procurement negotiated under 10 U.S.C. 2304 (a) (10). 1203.305 Forms of determinations and AUTHORITY: The provisions of this Part 1203 issued under R.S. 161, sec. 2(a), 72 Stat. 514, secs. 2202, 2301, 2314, 70A Stat. 120, 127, sec. 1, 76 Stat. 528; 5 U.S.C. 22, 171a(c), 10 U.S.C. 2202, 2301-2314; DoD Directive 5105.22, November 6, 1961. SOURCE: The provisions of this Part 1203 appear at 28 F.R. 2635, Mar. 19, 1963, unless otherwise noted. Subpart A-Use of Negotiation Subpart B-Circumstances Permitting § 1203.200 § 1203.200-50 Negotiation techniques. Where negotiation is contemplated and any determination and finding by the Assistant Secretary of Defense (I&L) is required, it is generally considered inappropriate to solicit offers, to hold meetings with potential contractors, or to take other actions concerning any form of negotiation, prior to securing Secretarial authority to negotiate. However, in the event urgency is a prime factor, solicitations of offers may be issued simultaneously with submission of the request for Secretarial authority to negotiate: Provided, That, in no event will the offers be opened or negotiations begun prior to obtaining the Secretary's signature on the required determination and findings. In such instances of urgency, the submitted request for authority to negotiate shall contain the reasons for urgency and a statement that although solicitations of offers have been released simultaneously with the submission of such request because of such urgency, the offers will not be opened or negotiations begun prior to the Secretary's signing of the determination and findings. § 1203.202 Public exigency. (a) It is DSA policy that negotiations will not be justified under the authority of 10 U.S.C. 2304(a) (2) when the award cannot be made within 30 days from the date of receipt of the purchase request by the purchasing office. (b) When negotiating under this authority, competition to the maximum extent practicable within the time allowed shall be obtained. (c) A procurement of material to effect necessary and emergency repairs to a broken water main would be appropriate under § 3.202 of this title and this section provided that the emergency conditions require immediate replacement of defective materials. This authority could also properly be cited for the emergency procurement of packing material required to effect an emergency air or rail shipment. The facts bearing on the emergency situation must clearly be shown in the determination and findings in sufficient detail to explain clearly the necessity for purchasing without formal advertising. The contracting officer's justification must be supported by the existence of specific emergency circumstances which in themselves relate to the particular purchase being effected. The facts bearing on the situation must clearly support the compelling and unusual urgency and indicate the extent to which the Government would be injured, financially or otherwise. (d) A short delivery or performance requirement in itself is not a justification for the use of 10 U.S.C. 2304(a) (2). The reasons for effecting delivery or performance by a certain date must be of such a nature that they will fully support the contracting officer's action in the use of this authority. When delivery requirements are of the utmost importance, officials supervising the issuance of procurement directives to contracting officers shall be responsible for clearly indicating in the directives the exigent importance for having the supplies delivered by certain dates, including the reasons therefor. In this connection, contracting officers should not be expected or required to negotiate contracts under this authority unless facts sufficient to support their actions are presented to them in writing. § 1203.202-50 Contract review by DSA. Nothwithstanding the requirement of § 1201.452-4 of this subchapter, the fol lowing will be submitted to the Executive Director, Procurement and Production, for review on an after-the-fact basis, unless both were previously submitted pursuant to § 1201.452-3 of this subchapter: (a) A copy of each contract negotiated under the authority of 10 U.S.C. 2304 (a) (2), and; (b) A copy of the contracting officer's determination and findings justifying the use of such authority. § 1203.210 Supplies or services for which it is impractical to secure competition by formal advertising. § 1203.210-50 Contract review by DSA. Notwithstanding the requirement of § 1201.452-4, the following will be submitted to the Executive Director, Procurement and Production, for review on an after-the-fact basis, unless both were previously submitted pursuant to § 1201.452-3 of this subchapter. (a) A copy of each contract negotiated under the authority of 10 U.S.C. 2304 (a) (10), and (b) A copy of the contracting officer's determination and findings justifying the use of such authority. § 1203.210-51 Sole source negotiations. When the authority of 10 U.S.C. 2304 (a) (10) has been cited as the authority to negotiate a procurement of supplies or services with a sole source, as discussed in § 3.210-2 (i) of this title, and when any synopsis action pursuant to 1.1003-1 of this title results in receipt of an offer or offers more advantageous to the Government than that of the heretofore considered sole source, any contract resulting from such competitive negotiations may cite 10 U.S.C. 2304 (a) (10) as the authority for such negotiation. awards made at bid prices considered reasonable should be indicated in the request for authority to negotiate. In the event the contracting officer considers that bid prices on all or part of the requirements were not independently reached in open competition, he shall, in addition to requesting secretarial authority to negotiate under 10 U.S.C. 2304 (a) (15), submit the report thereon required by § 1.111 of this title and § 1201.111 of this subchapter. § 1203.215-51 Determinations and findings. The following format is approved for determinations and findings under 10 U.S.C. 2304 (a) (15). AUTHORITY TO NEGOTIATE Upon the basis of the Findings and Determination set forth below the proposed procurement identified herein may be negotiated without formal advertising pursuant to the authority of 10 U.S.C. 2304(a) (15), as implemented by § 1203.215 of this title. FINDINGS I hereby find that: 1. This procurement is for (describe scope of work or nature of property or services to be procured). 2. The proposed procurement was formally advertised under Invitation for Bids dated which was forwarded to potential suppliers. The bid price(s) received from the (sole or lowest responsive and responsible bidder was or ranged from $---- to $----- This (These) price (prices) is (are) considered (unreasonable or were not independently reached in open competition) because (here include brief concise summary of reasons for the consideration). DETERMINATION Upon the basis of the Findings set forth above, I hereby determine that the price bid by the (sole or lowest responsive and responsible bidder) is unreasonable and may be rejected. Negotiation of a contract for this procurement is hereby authorized provided (a) that prior notice of intention to negotiate be given to each responsible bidder responding to the invitation for bids; (b) the negotiated price is lower than the lowest rejected price of any responsible bidder, as determined above; and (c) the negotiated price is the lowest negotiated price offered by any responsible supplier. |