for technical or specialized supplies requiring substantial initial investment for manufacture; or (8) Negotiation is otherwise authorized by applicable Federal, State, or local law rules or regulations. (b) Notwithstanding the existence of circumstances justifying negotiation, competition shall be obtained to the maximum extent practicable. (OMB Circular No. A-102, Attachment O.) § 100a.106 Contractor responsibility. Contracts shall be made by recipients only with responsible contractors who possess the potential ability to perform successfully under the terms and conditions of a proposed procurement. Consideration shall be given to such matters as contractor integrity, record of past performance, financial and technical resources, and accessibility to other necessary resources. (OMB Circular No. A-102, Attachment O.) § 100a.107 Records for negotiated procurements by State or local govern ments. A system for contract administration shall be maintained by the recipient to assure contractor compliance with terms, conditions, and specifications of the contract or order, and to assure adequate and timely follow up of all purchases. (OMB Circular No. A-102, Attachment O.) § 100a.109 Contract provisions. (a) General. (1) The recipient shall include provisions to define a sound and complete agreement in all contracts and subcontracts which it awards when the contract or subcontract costs are to be borne as a direct charge in whole or in part by Federal funds. (2) In awarding contracts and subcontracts, the recipient must comply with the applicable requirements of paragraph (b) of this section. (b) Contracts under grants and contracts. (1) If the recipient is a State or local government, its contracts shall contain contractual provisions or conditions which will allow for administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate. (2) All contracts awarded by State or local government recipients in excess of $2,500 shall contain suitable provisions for termination by the recipient including the manner by which it will be effected and the basis for settlement. In addition, such contracts shall set forth the conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor. (3) In all contracts for construction or facility improvement awarded in excess of $100,000, the bonding requirements set forth in Subpart J of this part shall be observed. (4) All negotiated contracts (except those of $2,500 or less) shall include provisions giving access to, and requiring retention of, the contractor's records in accordance with § 100a.477. (5) Each contract of an amount in excess of $2,500 awarded by a recipient shall provide for compliance with applicable regulations and standards of the Cost of Living Council in establishing wages and prices. The provision shall advise the contractor that submission of a bid or offer or the submittal of an invoice or voucher for property, goods, or services furnished under a contract or agreement with the recipient shall constitute a certification by him that amounts to be paid do not exceed maximum allowable levels authorized by the Cost of Living Council regulations or standards. Suspected violations shall be reported by the recipient in writing to the local Internal Revenue Service field office with a copy to the Commissioner. (6) Contracts in excess of $100,000 shall contain a provision which requires compliance with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act of 1970 as amended (42 U.S.C. 1857b, et seq.). Suspected violations shall be reported by the reciplent in writing to the regional office of the United States Environmental Pro tection Agency, with a copy to the (OMB Circular No. A-102, Attachment O.) General. Recipients shall observe their regular requirements and practices with respect to bonding and insurance. No additional bonding and insurance requirements will be imposed, including fidelity bonds, except as provided in § § 100a.121 and 100a.122. (OMB Circular No. A-102, Attachment B.) and facility § 100a.121 Construction improvement. The recipient of a grant or contract which requires contracting for construction or facility improvement (including any grant or contract which provides for alterations or renovations of real property) shall follow its own requirements and practices relating to bid guarantees, performance bonds, and payment bonds except for contracts exceeding $100,000. For contracts exceeding $100,000, the minimum requirements shall be as follows: (a) A bid guarantee from each bidder equivalent to five percent of the bid price. The bid guarantee shall consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of his bid, execute such contractual documents as may be required within the time specified. (b) A performance bond on the part of the contractor for 100 percent of the contract price. A performance bond is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under the contract. (c) A payment bond on the part of the contractor for 100 percent of the contract price. A payment bond is one executed in connection with a contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for in the contract. (OMB Circular No. A-102, Attachment B.) § 100a.122 Loan guarantees. Where in connection with a grant or contract, the Commissioner also guarantees the payment of money borrowed by the recipient, the Commissioner may, at his discretion, require adequate bond ing and insurance if the bonding and in- (OMB Circular No. A-102, Attachment B.) The provisions contained in this sub- For the purposes of this subpart, the § 100a.157 Manner of construction. Construction must be functional, un- § 100a.158 Timeliness of work. The recipient shall cause work on the project to be commenced within a reasonable time after receipt of notification from the Commissioner that funds have been awarded, and the project shall be prosecuted to completion with reasonable diligence. (20 U.S.C. 1232c (b) (1).) § 100a.159 tion. Commencement of construc (a) Approval by the Commissioner of the final working drawings and specifications shall be obtained before the proposed construction is advertised or placed on the market for bidding. (b) The construction shall go to final completion in accordance with the application and approved drawings and specifications. (c) The recipient shall submit to the Commissioner for prior approval changes that materially alter the scope or costs of the project, use of space, or functional layout. (20 U.S.C. 1221c (b) (1).) § 100a.160 Civil rights assurance. If an assurance of compliance with title VI of the Civil Rights Act of 1964 (Form HEW 441) applying to the facility described in the application has not been filed, such an assurance shall be attached to the application. (42 U.S.C. 2000d.) § 100a.161 Title to site. The recipient shall have, or shall obtain, a fee simple or such other estate or interest in the site, including access thereto, as is sufficient to assure undisturbed use and possession of the facilities for not less than the useful life of the facilities, or 50 years, whichever is the greater. (OMB Circular No. A-102, attachment N.) § 100a.164 Contracting. (a) Except as otherwise provided by State or local law, all contracting for construction (including the purchase and installation of built-in equipment) shall be on a lump sum fixed-price basis; and, except as provided in paragraph (b) of this section, contracts shall awarded pursuant to Subpart I of this part on the basis of competitive bidIding with award of the contract to the lowest responsive and responsible bidder. be proper facilities for such access and inspection. (20 U.S.C. 1232c (a) (2).) § 100a.170 Operation and maintenance. The facility shall be operated and maintained in accordance with the requirements of applicable Federal, State, and local agencies for the maintenance and operation of such facilities. (20 U.S.C. 1221c (b) (1).) § 100a.171 Cost-sharing and operational funds. Sufficient funds shall be available to meet the non-Federal share of the cost of constructing the facility (where applicable), and sufficient funds shall be available when construction is completed to assure effective operation and maintenance of the facility for the purposes for which constructed. (20 U.S.C. 1221c(b) (1).) § 100a.172 Supervision and inspection. The recipient shall provide and maintain competent and adequate architectural engineering supervision and inspection and at the construction site to insure that the completed work conforms to the approved drawings and specifications. (20 U.S.C. 1232c(b) (1).) § 100a.173 Cultural activities. Reasonable provision shall be made, consistent with the other uses to be made of the facilities, for areas in such facilities which are adaptable for artistic and cultural activities. (20 U.S.C. 1221c (b) (1).) § 100a.184 Safety and health. In planning for and designing facilities, the recipient shall observe nationally recognized safety and health standards and codes, including National Fire Protection Association standards and those adopted under the Occupational Safety and Health Act of 1970 (Public Law 91-576): Provided, however, That, to the extent that State and local codes are more stringent, they shall apply. (29 U.S.C. 651.) § 100a.185 Environmental impact. Each applicant shall provide the department regional office with its assessment of the impact of the project on the quality of the environment in accordance with section 102(2) (c) of the National Environmental Policy Act of 1969 and Executive Order No. 11514 (34 FR 4247). (42 U.S.C. 4332(2) (c).) 1 § 100a.186 Preservation of historic sites. Each application for Federal financial assistance for construction shall describe the relationship to and the probable effect, or lack of effect, on any district, site, building, structure, or object that is included in the National Register of Historic Preservation of the National Park Service and published with periodical updatings in the FEDERAL REGISTER. Such information is to be furnished to the Department to enable it to take into account such an effect and to consider the comments thereon of the advisory council on historic preservation, prior to providing such Federal financial assistance, as required by section 106 of Public Law 89665. (16 U.S.C. 4701.) § 100a.187 Davis-Bacon, Copeland, and Contract Work Hours Standards Acts. Except as otherwise provided by law, all laborers and mechanics employed by contractors and subcontractors on construction assisted under Federal programs, including minor remodeling, shall be paid wages at rates not less than those prevailing as determined by the Secretary of Labor in accordance with the Davis-Bacon Act, as amended, and shall receive overtime compensation in accordance with and subject to the provisions of the Contract Work Hours Standards Act. Such contractors and subcontractors shall comply with the provisions of 29 CFR part 3 ("antikickback" regulations); and all construction contracts and subcontracts shall incorporate the contract clauses required by 29 CFR 5.5 (a) and (c). (20 U.S.C. 1232b; 40 U.S.C. 276a, 276c, 327332.) § 100a.188 Nondiscrimination. Construction contracts shall include the applicable provisions of Executive Order No. 11246, as amended by Executive Order No. 11375 (nondiscrimination in construction contract employment), and the applicant shall otherwise comply with the requirements of section 301 of said Executive order. (E.O. Nos. 11246, 11375.) § 100a.189 Access by the handicapped. The recipient shall require the facility to be designed to comply with the "American Standard Specifications for Making Buildings and Facilities Accessible to, and Usable by, the Physically Handicapped," No. A117.1-1961, as modified by other standards prescribed by the Secretary or the U.S. Administrator of General Services (41 CFR 101-17.703). The applicant shall be responsible for conducting inspections to insure compliance with these specifications by the contractor. (42 U.S.C. 4151, 4152, 4155.) § 100a.190 Avoidance of flood hazards. In the planning of the construction of facilities involving the use of Federal funds, the recipient shall, in accordance with the provisions of Executive Order No. 11296 of August 10, 1966 (31 FR 10663) and such rules and regulations as may be issued by the Secretary to carry out those provisions, evaluate flood hazards in connection with such facilities and, as far as practicable, avoid the uneconomic, hazardous, or unnecessary use of flood plains in connection with such construction. § 100a.209 Scope of subpart. This subpart prescribes policies and procedures governing title, use, and disposition of real and tangible personal property whose acquisition cost was borne in whole or in part as a direct charge by Federal grants or contracts and ownership and rights for intangible personal property developed under Federal grants and contracts. (OMB Circular No. A-102, Attachment N.) § 100a.210 General. Recipients may follow their own property management policies and procedures, provided they observe the requirements of this subpart. (OMB Circular No. A-102, Attachment N.) As used in this subpart: "Acquisition cost" of nonexpendable personal property acquired by purchase means the net invoice price of the property, including any attachments, accessories, or auxiliary apparatus necessary to make the property usable for the purpose for which it was acquired. Ancillary charges such as taxes, duty, protective intransit insurance, freight, or installation shall be included in or excluded from acquisition cost in accordance with the recipient's regular accounting practices. "Real property," means land, land improvements, structures and appurtenances thereto, excluding movable machinery and equipment. (OMB Circular No. A-102, Attachment N.) § 100a.212 Real property. Title to real property whose acquisition cost was borne in whole or in part by Federal funds shall vest in the reciplent upon acquisition. In the absence of applicable statutory provisions governing the use or disposition of such property, it shall be subject to the following requirements, in addition to (and subject to) any other requirements imposed by statute or regulation. (a) The recipient shall use the real property for the purposes authorized by the original grant or contract as long as needed. (b) The Commissioner may authorize the recipient to use the property for the following (but no other) purposes when the grantee determines that the property is no longer needed for the originally authorized purposes: (1) Activities sponsored by other Federal awards (regardless of which Federal agency makes the other awards), or (2) Activities not sponsored by other Federal awards, but which, nevertheless, have purposes consistent with those of the legislation under which the original award was made. (c) (1) When no longer used in accordance with paragraphs (a) and (b) of this section, the recipient shall return to the control of the Commissioner all real property whose acquisition cost was borne wholly by Federal funds. If the acquisition cost of the property was borne partly by Federal funds, the recipient may be relieved of accountability to the Federal Government with respect to the Federal interest in the property by compensating the Federal Government for its fair share of the current value of the property, or if the recipient no longer needs the property, by selling it and compensating the Federal Government for its fair share of the sales proceeds. (2) The amount of compensation to the Federal Government under subparagraph (1) of this paragraph shall be computed by applying the percentage of Federal participation in the cost of the project for which the property was acquired to the property's current fair market value (if the recipient retains the property) or to the proceeds from sale (if the recipient sells the property). In most cases, the real property will have been acquired under an award whose purpose was to assist the recipient in acquiring the property (e.g., a construction grant). In such cases, the "total cost of the project for which the property was acquired" will ordinarily be the same as the acquisition cost of the property. (OMB Circular No. A-102, Attachment N.) § 100a.215 Nonexpendable personal property. (a) Title. When nonexpendible personal property is acquired by a recipient wholly or in part with Federal funds, title shall be vested in the recipient. (b) Use. (1) The recipient shall retain such property in the project as long as there is a need for such property to accomplish the purpose of the project, whether or not the project continues to be supported by Federal funds. (2) When there is no longer a need for such property to accomplish the purpose of the project, the recipient shall use the property in connection with other Federal awards it has received in the following order or priority: (1) Other awards under Federal programs administered by the Commissioner needing the property, (ii) Awards of other Federal agencies needing the property. (3) When the recipient no longer has need for such property in any of its federally assisted projects, the property may be used for the recipient's own official activities in accordance with the following standards: (1) If the property had an acquisition cost of less than $500 per unit and has been used 4 years or more, the recipient may use the property without reimburse |