lution, controversial matters, and the names of the participants or units assigned responsibility for further actions, as well as the due dates for such actions.

§ 1-1.1806 Postaward letters.

Where less complex contracts are involved, a letter to the contractor may be sufficient. In such cases, the letter should identify the Government representative responsible for administering the contract and should cite any unusual contract requirements such as special reports, revised specifications, preproduction tests, subcontracting consent requirements, Government property to be furnished, and any other significant requirements.

Subpart 1-1.19-1-1.22-[Reserved]

Subpart 1-1.23—Environmental Protection

SOURCE: Subpart 1-1.23 appears at 40 FR 36339, Aug. 20, 1975, unless otherwise noted.

§ 1-1.2300 Scope of subpart.

This subpart prescribes policies and procedures regarding the requirements of the Clean Air Act, as amended (42 U.S.C. 1857 et seq., as amended by Pub. L. 91-604, December 31, 1970), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq., as amended by Pub. L. 92-500, October 18, 1972), Executive Order 11738, September 10, 1973, and the related regulations of the Environmental Protection Agency (EPA) (40 CFR Part 15).

§ 1-1.2301 Policy.

(a) Executive Order 11738 provides in section 1 that "It is the policy of the Federal Government to improve and enhance environmental quality. In furtherance of that policy, the program prescribed in this Order is instituted to assure that each Federal agency empowered to enter into contracts for the procurement of goods, materials, or services, and each Federal agency empowered to extend Federal assistance by way of grant, loan, or contract shall undertake such procurement and assistance activities in a manner that will result in effective en

forcement of the Clean Air Act (hereinafter referred to as the 'Air Act') and the Federal Water Pollution Control Act (hereinafter referred to as the 'Water Act')."

(b) Except as provided in § 1-1.23024, no executive agency shall enter into, renew, or extend any contract for the procurement of goods, materials, or services to a firm proposing to use in the performance thereof a facility which is listed by the Director, Office of Federal Activities, Environmental Protection Agency (EPA), pursuant to 40 CFR 15.20, as a violating facility under either the Air Act or the Water Act.

§ 1-1.2302 Administration and enforcement.

§ 1-1.2302-1 Solicitation provision.

The provisions set forth below shall be included in each solicitation and resulting contract (except those involving small purchases (see Subpart 13.6)) and contracts awarded without reference to a solicitation.

CLEAN AIR AND WATER CERTIFICATION

(Applicable if the bid or offer exceeds $100,000, or the contracting officer has determined that orders under an indefinite quantity contract in any year will exceed $100,000, or a facility to be used has been the subject of a conviction under the Clean Air Act (42 U.S.C. 1857c-8(c)(1)) or the Federal Water Pollution Control Act (33 U.S.C. 1319(c)) and is listed by EPA, or is not otherwise exempt.)

The bidder or offeror certifies as follows:

(a) Any facility to be utilized in the performance of this proposed contract has [], has not [ 1, been listed on the Environmental Protection Agency List of Violating Facilities.

(b) He will promptly notify the contracting officer, prior to award, of the receipt of any communication from the Director, Office of Federal Activities, Environmental Protection Agency, indicating that any facility which he proposes to use for the performance of the contract is under consideration to be listed on the EPA List of Violating Facilities.

(c) He will include substantially this certification, including this paragraph (c), in every nonexempt subcontract.

§ 1-1.2302-2 Contract clause.

The following clause shall be included in all contracts except those involving small purchases:

CLEAN AIR AND WATER

(Applicable only if the contract exceeds $100,000, or the contracting officer has determined that orders under an indefinite quantity contract in any one year will exceed $100,000, or a facility to be used has been the subject of a conviction under the Clean Air Act (42 U.S.C. 1857c-8(c)(1)) or the Federal Water Pollution Control Act (33 U.S.C. 1319(c)) and is listed by EPA, or the contract is not otherwise exempt.)

(a) The Contractor agrees as follows: (1) To comply with all the requirements of section 114 of the Clean Air Act, as amended (42 U.S.C. 1857 et seq., as amended by Pub. L. 91-604) and section 308 of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq., as amended by Pub. L. 92-500), respectively, relating to inspection, monitoring, entry, reports, and information, as well as other requirements specified in section 114 and section 308 of the Air Act and the Water Act, respectively, and all regulations and guidelines issued thereunder before the award of this contract.

(2) That no portion of the work required by this prime contract will be performed in a facility listed on the Environmental Protection Agency List of Violating Facilities on the date when this contract was awarded unless and until the EPA eliminates the name of such facility or facilities from such listing.

(3) To use his best efforts to comply with clean air standards and clean water standards at the facility in which the contract is being performed.

(4) To insert the substance of the provisions of this clause into any nonexempt subcontract, including this paragraph (a)(4).

(b) The terms used in this clause have the following meanings:

(1) The term "Air Act" means the Clean Air Act, as amended (42 U.S.C. 1857 et seq., as amended by Pub. L. 91604).

(2) The term "Water Act" means Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et seq., as amended by Pub. L. 92-500).

(3) The term "clean air standards" means any enforceable rules, regulations, guidelines, standards, limitations, orders, controls, prohibitions, or other requirements which are contained in, issued under, or otherwise adopted pursuant to the Air Act or Executive Order 11738, an applicable implementation plan as described in section 110(d) of the Clean Air Act (42 U.S.C. 1857c-5(d)), an approved implementation procedure or plan under section 111(c) or section 111(d), respectively, of the Air Act (42 U.S.C. 1857c6 (c) or (d)), or an approved implementation procedure under section 112(d) of the Air Act (42 U.S.C. 1857c-7(d)).

(4) The term "clean water standards" means any enforceable limitation, control, condition, prohibition, standard, or other requirement which is promulgated pursuant to the Water Act or contained in a permit issued to a discharger by the Environmental Protection Agency or by a State under an approved program, as authorized by section 402 of the Water Act (33 U.S.C. 1342), or by local government to ensure compliance with pretreatment regulations as required by section 307 of the Water Act (33 U.S.C. 1317).

(5) The term "compliance" means compliance with clean air or water standards. Compliance shall also mean compliance with a schedule or plan ordered or approved by a court of competent jurisdiction, the Environmental Protection Agency or an air or water pollution control agency in accordance with the requirements of the Air Act or Water Act and regulations issued pursuant thereto.

(6) The term "facility" means any building, plant, installation, structure, mine, vessel or other floating craft, location, or site of operations, owned, leased, or supervised by a contractor or subcontractor, to be utilized in the performance of a contract or subcontract. Where a location or site of operations contains or includes more than one building, plant, installation, or structure, the entire location or site shall be deemed to be a facility except where the Director, Office of Federal Activities, Environmental Protection Agency, determines that independent facilities are collocated in one geographical area.

40-104 0-79——9

§ 1-1.2302-3 Compliance responsibilities.

The primary responsibility for ensuring compliance with Federal, State, or local environmental control laws and any rules, regulations, standards, or guidelines issued pursuant thereto rests with those agencies, such as the Environmental Protection Agency, charged with this responsibility under the various laws concerned. However, if the contracting officer, in the performance of his regular duties, becomes aware of any condition which involves noncompliance with clean air or water standards in any facility being used in the performance of a nonexempt agency contract, he shall notify the agency head or his designee in accordance with agency procedures. The agency head or his designee shall promptly transmit such reports to the Director, Office of Federal Activities, EPA, Washington, DC, 20460.

§ 1-1.2302-4 Exemptions.

are

Contracts and subcontracts exempt from the requirement of this subpart and 40 CFR Part 15 in accordance with the provisions of this section (see exclusion in paragraph (c)).

(a) Transactions $100,000 and under. Contracts and subcontracts not exceeding $100,000 are exempt.

(b) Contracts and subcontracts for indefinite quantities. Contracts and subcontracts for indefinite quantities are exempt if the contracting officer has reason to believe that the amount ordered in any year under such contract will not exceed $100,000.

(c) Exclusion. Except for small purchases, the foregoing exemptions shall not apply to a proposed contract under which the facility to be used is listed on the EPA List of Violating Facilities on the basis of a conviction either under the Air Act (42 U.S.C. 1857c-8(c)(1)) or the Water Act (33 U.S.C. 1319(c)).

(d) Facilities located outside the United States. This subpart and 40 CFR Part 15 do not apply to the use of facilities located outside the United States. The term "United States", as used herein, includes the States, District of Columbia, Commonwealth of Puerto Rico, Virgin Islands, Guam and American Samoa, and Trust Territory of the Pacific Islands.

(e) Authority of head of an agency. Where a head of an agency, as defined in § 1-1.204, determines that the paramount interest of the United States so requires, he may exempt from the provisions of this subpart any individual or class of contracts or subcontracts, for a period of one year. Class exemptions shall follow consultation with the Director, Office of Federal Activities, EPA, Washington, DC, 20460. In the case of an individual exemption, the agency head granting the exemption shall notify the Director as soon after granting the exemption as practicable. Such notification shall describe the purpose of the contract and shall indicate the manner in which the paramount interest of the United States required that the exemption be made.

§ 1-1.2302-5 Withholding award.

If, pursuant to the certification in § 1-1.2302-1, the otherwise successful offeror informs the contracting officer that the EPA is considering listing a facility proposed to be used for contract performance, the contracting officer shall promptly notify the Director, Office of Federal Activities, EPA, Washington, DC, 20460, according to agency procedures, that the offeror is under consideration for award. The Director, Office of Federal Activities, EPA, after consultation with the agency involved, may request the contracting officer to delay award for a period not to exceed 15 working days. The 15 working days shall begin on the date the Director is notified by the agency that such award is under consideration. Awards shall be withheld except when such delay is likely to prejudice the agency's programs or otherwise seriously disadvantage the Government. Prompt notice shall be given to the Director in any case where such determination to award has been made.

Subpart 1-1.24-[Reserved]

Subpart 1-1.25-Recovered Materials

SOURCE: Subpart 1-1.25 appears at 43 FR 53729, Nov. 17, 1978, unless otherwise noted.

§ 1-1.2500 Scope of subpart.

This subpart prescribes policies and procedures regarding the use of recovered materials.

§ 1-1.2501 Policy.

The policy of the Government is to procure items composed of the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition. § 1-1.2502 General.

This subpart 1-1.25 implements the Solid Waste Disposal Act (42 U.S.C. 3251 et seq.) as amended by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. 6901 et seq.), and Office of Federal Procurement Policy Letter No. 77-1. The statutes require agencies responsible for drafting or reviewing specifications to ensure that they: (1) Do not exclude the use of recovered materials, (2) do not require that items be manufactured from virgin materials, and (3) require recovered materials to the maximum extent possible without jeopardizing the intended end use of items. The statutes also require the Administrator, Environmental Protection Agency (EPA), to prepare guidelines on the availability, sources, and potential uses of recovered materials and associated items.

§ 1-1.2503 Definitions.

(a) "Recovered material" means material which has been collected or recovered from solid waste. It includes reclaimed materials.

(b) "Solid waste" means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities. It does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under section 402 of the Federal Water Pollution Control Act, as amended (33 U.S.C. 1242), or

source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011).

§ 1-1.2504 Procedures.

(a) This section is applicable to all procurements that: (1) Use Government specifications which specify minimum percentages of recovered materials, and (2) involve a purchase price for an item that: (i) exceeds $10,000 or (ii) exceeds $10,000 for quantities of an item or a functionally equivalent item purchased or acquired during the preceding fiscal year.

(b) Solicitations and contract awards which employ Government specifications requiring the utilization of recovered materials shall include a certification which, as a minimum, is as follows:

CERTIFICATION OF RECOVERED MATERIALS

The offeror contractor certifies that recovered materials will be used as required by specifications referenced in the solicitation/contract.

(c) Requirements in Government specifications involving recovered materials may be waived by the contracting officer only after a determination that the items:

(1) Are not reasonably available within a reasonable period of time, or (2) (i) Fail to meet the performance standards set forth in the applicable specifications, or (ii) fail to meet the reasonable performance standards of the agency, or

(3) Are not available at a reasonable price.

The determination required by § 11.2504(c)(2) may be made only on the basis of Bureau of Standards guidelines.

Sec.

PART 1-2-PROCUREMENT BY FORMAL ADVERTISING

1-2.000 Scope of part.

Subpart 1-2.1-Use of Formal Advertising

1-2.101 Meaning of formal advertising. 1-2.102 Policy.

1-2.103 General requirements for formally

advertised contracts. 1-2.104 Types of contracts.