§ 66.36
(vi) Specifying only a ‘‘brand name”’
product instead of allowing ‘‘an equal”’
product to be offered and describing
the performance of other relevant re-
quirements of the procurement, and
(vii) Any arbitrary action in the pro-
curement process.
(2) Grantees and subgrantees will
conduct procurements in a manner
that prohibits the use of statutorily or
administratively imposed in-State or
local geographical preferences in the
evaluation of bids or proposals, except
in those cases where applicable Federal
statutes expressly mandate or encour-
age geographic preference. Nothing in
this section preempts State licensing
laws. When contracting for architec-
tural and engineering (A/E) services,
geographic location may be a selection
criteria provided its application leaves
an appropriate number of qualified
firms, given the nature and size of the
project, to compete for the contract.
(3) Grantees will have written selec-
tion procedures for procurement trans-
actions. These procedures will ensure
that all solicitations:
(i) Incorporate a clear and accurate
description of the technical require-
ments for the material, product, or
service to be procured. Such descrip-
tion shall not, in competitive procure-
ments, contain features which unduly
restrict competition. The description
may include a statement of the quali-
tative nature of the material, product
or service to be procured, and when
necessary, shall set forth those min-
imum essential characteristics and
standards to which it must conform if
it is to satisfy its intended use. De-
tailed product specifications should be
avoided if at all possible. When it is
impractical or uneconomical to make a
clear and accurate description of the
technical requirements, a ‘‘brand name
or equal” description may be used as a
means to define the performance or
other salient requirements of a pro-
curement. The specific features of the
named brand which must be met by
offerors shall be clearly stated; and
(ii) Identify all requirements which
the offerors must fulfill and all other
factors to be used in evaluating bids or
proposals.
(4) Grantees and subgrantees will en-
sure that all prequalified lists of per-
28 CFR Ch. | (7-1-10 Edition)
sons, firms, or products which are used
in acquiring goods and services are cur-
rent and include enough qualified
sources to ensure maximum open and
free competition. Also, grantees and
subgrantees will not preclude potential
bidders from qualifying during the so-
licitation period.
(d) Methods of procurement to be fol-
lowed—(1) Procurement by small purchase
procedures. Small purchase procedures
are those relatively simple and infor-
mal procurement methods for securing
services, supplies, or other property
that do not cost more than the sim-
plified acquisition threshold fixed at 41
U.S.C. 403(11) (currently set at $100,000).
If small purchase procedures are used,
price or rate quotations shall be ob-
tained from an adequate number of
qualified sources.
(2) Procurement by sealed bids (formal
advertising). Bids are publicly solicited
and a firm-fixed-price contract (lump
sum or unit price) is awarded to the re-
sponsible bidder whose bid, conforming
with all the material terms and condi-
tions of the invitation for bids, is the
lowest in price. The sealed bid method
is the preferred method for procuring
construction, if the conditions in
§ 66.36(d)(2)(i) apply.
(i) In order for sealed bidding to be
feasible, the following conditions
should be present:
(A) A complete, adequate, and real-
istic specification or purchase descrip-
tion is available;
(B) Two or more responsible bidders
are willing and able to compete effec-
tively and for the business; and
(C) The procurement lends itself to a
firm fixed price contract and the selec-
tion of the successful bidder can be
made principally on the basis of price.
(ii) If sealed bids are used, the fol-
lowing requirements apply:
(A) The invitation for bids will be
publicly advertised and bids shall be
solicited from an adequate number of
known suppliers, providing them suffi-
cient time prior to the date set for
opening the bids;
(B) The invitation for bids. which
will include any specifications and per-
tinent attachments, shall define the
items or services in order for the bidder
to properly respond;
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