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(2) Total actions and dollar value of awards to all businesses.

(3) Total actions and dollar value of awards to small business.

(4) Total actions and dollar value of construction awards to small business made by set-aside.

(5) Total actions and dollar value of small business awards made by setasides, excluding set-asides for construction.

(6) Total actions and dollar value of awards made to the Small Business Administration pursuant to section 8(a) or the Small Business Act.

(7) Total actions and dollar value of awards made to minority concerns.

(c) The reports identified in paragraphs (a) and (b) of this section are to be submitted to the Small Business Advisor no later than the 20th day following the end of the reporting period with the exception of the last report of the fiscal year which shall be submitted no later than the 30th day following the end of the fiscal year.

(5 U.S.C. 301)

[42 FR 63786, Dec. 20, 1977]

Subpart 15-1.23-Environmental Protection

§ 15-1.2302-3 Compliance responsibilities. Notifications required by FPR 11.2302-5 shall be forwarded, in writing, to the Director, Contracts Management Division.

(5 U.S.C. 301)

[42 FR 63786, Dec. 20, 1977]

§ 15-1.2302-5 Withholding award.

Notifications required by FPR 11.2302-5 shall be forwarded, in turn, to the Director, Office of Federal Activities, and the Director, Contracts Management Division. such notice shall be by telephone and the date notice is given shall be noted in the procurement file to establish the start of the 15 working day delay period.

(5 U.S.C. 301)

[42 FR 63786, Dec. 20, 1977]

Subpart 15-1.50-Closing Completed or Terminated Contracts

AUTHORITY: 5 U.S.C. 301.

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A completed contract is one that is both physically and administratively complete and in which all aspects of contractual performance have been accomplished or formally waived. A contract is physically complete only after all property and services called for under the contract, including such related items as reports, materials, data, and exhibits, have been delivered to and accepted by the Government including property and services for which no specific compensation may have been stipulated or a notice of complete contract termination has been given the contractor by the Government. A contract is administratively complete when all payments have been made and all administrative actions accomplished. A contractor accorded limited administration and having a face value of $10,000 or under is closed when evidence of physical completion is received by the contracting officer.

§ 15-1.5002 Procedures.

§ 15-1.5002-1 Closing review.

(a) Upon physical completion, the contract and contract file shall be reviewed to verify that all actions have been fully documented to the extent practicable. Consideration must be given to the type of contract being closed, and the contract file shall be reviewed to determine that:

(1) All services have been rendered and accepted;

(2) All property, including but not limited to contract end items, reports, data, and exhibits, have been delivered and accepted;

(3) All payments and collections have been accomplished;

(4) Releases from liabilities, obligations, and claims have been obtained from the contractor, if appropriate;

(5) Assignments of refunds, rebates, and credits, have been executed by the contractor, if approprate;

(6) All administrative actions have been completed such as determination of final overhead rates, release of funds, or disposal of property, and all administrative reviews and approvals have been accomplished and documented regarding such items as wages, salaries, insurance, and accounting;

(7) The file is documented as prescribed in § 15-1.313; and

(8) Ascertain the possible existence of pending disputes, contingent liabilities, or circumstances out of which future claims or litigation might arise, potential credits, or refunds or other future recoveries. Insure that adequate reserves have been set aside to provide for contingent liabilities.

(b) A closing review shall be made to insure that either the contract file contains, or that all actions necessary to complete the file have been consummated as they are applicable to the type of contract being closed:

(1) Inspection and acceptance documents or a statement from program personnel that all services and property required by the contract have been performed or delivered in accordance with the terms of the contract and are acceptable to the Government. All discrepancies in actual performance or delivery with contract requirements must be reconciled before the contract file is closed;

(2) Contract files shall not be closed or final payment made until (i) all questions of disallowed or suspended costs are settled; (ii) the "completion voucher" and the "cumulative claim and reconciliation statement" are verified (see § 15-1.5002-3) and final audit report or closing statement obtained from the Cost Review and Policy Branch, Contracts Management Division; (iii) all discrepancies are resolved between payments and deliveries or performance, and between billings and payments; (iv) final overhead rates are established and set forth in a contract modification; (v) assignments of refunds, rebates, credits, and other amounts are executed; (vi) final release of claims is received from the contractor; and (vii) partial or complete termination settlements are set

forth in a supplemental agreement and payment or collection made;

(3) A copy of each subcontract approved or ratified by the contracting officer, together with the letter or document of approval and the subcontract review memorandum must be retained in the contract file. If approval of individual subcontracts is waived by approval of the contractor's purchasing system, a copy of or a specific reference to the purchasing system approval must be included in the contract file. Unresolved disputes between prime and subcontractors must be resolved before the prime contract file can be closed, unless the prime contractor releases the Government from any obligation relating to the subcontractor claims;

(4) Before a contract file can be closed, all additions or changes to the terms, conditions, or administrative recitals must be formalized by an appropriate supplemental agreement or unilateral change order. Timely action must be taken to formalize adjustment of price, estimated cost, or fee when required by special contract provisions, such as price redetermination, incentive clauses, escalation, or partial or complete termination settlements. Contracting officers have no authority to, and shall not, give or execute any kind of release of claim or obligation to the contractor except by formal modification of the contract;

(5) All Government-owned property, real or personal, either furnished by the Government or acquired by the contractor for the account of the Government, must be accounted for and appropriate disposal action taken upon physical completion of the contract. The contract file shall not be closed until the inventory of all such Government-owned property is verified and a complete record of the disposition of all property is placed in the file;

(6) Individual copies of the following must be placed in the contract file prior to closing: (i) Systems approvals, i.e., accounting, estimating, purchasing, property management, quality assurance, and maintenance; (ii) advance understanding on particular items of cost identified in FPR 1-15.107; i.e., IR&D, employee compensation, travel,

insurance plans, and precontract costs; and (iii) other agreements relating to contract performance;

(7) Copies of appropriate clearances and reports relating to inventories, patents, royalties, copyright, publications, and tax exemptions must be included in the official contract file. Also the file must contain copies of inquiries from and answers and reports to sources such as the Congress, the General Accounting Office, audit activities, and other organizations; and

(8) Copies of letters delegating contract administration, such as technical direction, quality assurance inspection and acceptance, property management, and subcontract approval, must be included in the official contract file and a statement that all delegated actions were completed satisfactorily.

§ 15-1.5002-2 Contract closing memorandum.

The contracting officer shall prepare a memorandum that may take the form of a memorandum for the record or a checklist of contract actions applicable to the type of contract involved (see § 15-1.313 and § 15-1.5002-1). The memorandum shall contain as a minimum verification that all contract performance is completed and that all contract actions have been fully documented. Contracting activities shall design and prescribe the form and contents of such closing checklists.

[42 FR 63786, Dec. 20, 1977; 43 FR 967, Jan. 5, 1978]

§ 15-1.5002-3 Verification of costs.

Before final payment is made under a cost-reimbursement type contract, the contracting officer must verify the allowability, allocability, and reasonableness of costs claimed. Verification of total costs incurred should be obtained from the Office of Audit, through the Cost Review and Policy Branch, CMD, in the form of a final audit certification. Similar verification of actual costs must be made for fixedprice contracts when cost incentive or price redetermination are involved. Termination settlement proposals shall be submitted to the Cost Review and Policy Branch for review by the Office of audit, as prescribed by FPR 1-8.207.

§ 15-1.5002-4 Termination.

(a) All documentation relating to the terminated portion of a contract shall be maintained in a separate termination file or in a separately identifiable section of the official contract file. After final settlement and payment or collection of all termination claims, the termination file shall be reviewed to insure that the file contains documentation to support all actions relating to the termination settlement and to the disposition of the Governmentowned property. Documentation of the file shall include:

(1) Request for termination action or a statement of reasons for the termination;

(2) Notice of termination and instructions to the contractor, and notice to the General Accounting Office as prescribed by FPR 1-8.403;

(3) Correspondence with the contractor and records of all discussions, meetings, and negotiations;

(4) Copies of all settlement proposals and accounting reviews and analysis thereof;

(5) Records and approvals of subcontractor settlements;

(6) Inventory schedules and records of disposal of Government-owned property; and

(7) Settlement agreements, records of exceptions, and contracting officer determinations, as appropriate.

(b) After all termination actions are completed and the separate termination file closed, it shall be filed as part of the official contract file.

Subpart 15-1.53-Code of Conduct

§ 15-1.5300 Code of conduct.

(a) Government personnel. (1) A number of Federal statutes prohibit certain acts by Government personnel and special Government employees as defined in 18 U.S.C. 202 in relation to procurement activities for the Government. Among these statutes are the following: (i) 18 U.S.C. 201 relating to bribes in order to secure a Government contract; (ii) 18 U.S.C. 203 relating to compensation for services rendered in connection with any proceeding or claim in which the United States has an interest; (iii) 18 U.S.C.

205 relating to acting as an agent or attorney for prosecuting any claim against the United States; (iv) 18 U.S.C. 208 relating to transacting business as an officer or agent of the United States with firms of which such officer or agent, his spouse, minor child, or partner is an official or in which he has a pecuniary interest; and (v) 18 U.S.C. 209 relating to compensation from non-Government sources in connection with Government services EPA regulations on Employee Responsibilities and Conduct are contained in 40 CFR 3.735-101 et seq. All personnel involved in procurement actions shall become familiar with these statutory prohibitions. Any questions concerning them shall be referred to the Assistant General Counsel for Grants and Procurement. In addition to criminal penalties the statutes provide that transactions entered into in violation of these prohibitions are voidable (18 U.S.C. 218).

(2) Aside from such statutory prohibitions, as set forth above, procurement personnel shall maintain the highest standards of conduct in connection with dealings on behalf of the Government. Such conduct must at all times be beyond reproach and must be such that each individual involved in EPA procurement activities would have no reticence in making a full public disclosure of all actions taken in connection with such activities.

[37 FR 3989, Feb. 25, 1972, as amended at 42 FR 63787, Dec. 20, 1977]

§ 15-1.5301 Organizational conflicts of interest.

(a) It is EPA policy to avoid situations in the procurement process where, by virtue of work or services performed for EPA, or as the result of data acquired from EPA or from industry, a particular company:

(1) Is given an unfair competitive advantage over other companies in respect to future EPA business;

(2) Is placed in a position to affect Government actions under circumstances in which there is danger that the company's judgment may be biased; or

(3) Otherwise finds that a conflict exists between the performance of work or services for the Government

in an impartial manner and the company's own self-interest.

(b) It has been EPA's experience that conflicts of this type occur most frequently in circumstances where contractors provide services involving either (1) the preparation of specifications or statements of work to be incorporated into a solicitation of bids or proposals on subsequent procurements, or (2) access to the proprietary data of other companies. In such circumstances, the following clause shall be used in both the solicitation and the ensuing contract:

LIMITATION ON FUTURE CONTRACTING

(a) It is agreed by the parties to this contract that the Contractor will be restricted in its future contracting with EPA in the manner described below. Except as specifically provided in this clause, the Contractor shall be free to complete for EPA contracts on an equal basis with other companies.

(b) If the Contractor, under the terms of this contract, or through the performance of tasks pursuant to this contract, is required to develop specifications or statements of work and such specifications or statements of work are incorporated into a solicitation, the Contractor shall be ineligible to perform the work described in that solicitation as a prime or first tier subcontractor under an ensuing EPA contract. Such restriction shall remain in effect for three years following the date of the initial solicitation. It is further agreed that EPA will not unilaterally require the Contractor to prepare specifications or statements of work under this contract.

(c) To the extent that the work under this contract requires access to proprietary or confidential business or financial data of other companies, and as long as such data remains proprietary or confidential, the Contractor shall protect such data from unauthorized use and disclosure and agrees not to use it to compete with such companies.

(d) The restrictions of paragraph (b) above may be waived by the contracting officer if it is determined that such restrictions would be detrimental to the EPA program.

The waiver provision in paragraph (d) of the clause may be exercised by the contracting officer only after receiving written approval from the Director, Contracts Management Division, EPA. Unless the circumstances of paragraph (b) or (c) of the clause are present, the fact that a contractor will perform re

search and development work under a support service contract is not reason for inclusion of the clause: Provided, That if the circumstances of paragraph (b) or (c) of the clause are introduced by a task order which is to be issued under a contract whose general scope would not have otherwise required the clause, the clause will be incorporated in the basic contract prior to issuance of the task order.

(c) In those cases where the contracting officer determines that a potential organizational conflict of interest exists which is not covered by the clause set out in paragraph (b) of this section, he shall prepare a written analysis of the facts of the case, clearly indicating the area of concern and the nature of the potential conflict. The written analysis shall be forwarded to the Director, Contracts Management Division, who after obtaining the advice of counsel, shall prepare an appropriate clause for use in the solicitation and/or the contract, or take other appropriate action.

[37 FR 3889, Feb. 25, 1972]

Subpart 15-1.57-Options

SOURCE: 39 FR 30836, Aug. 26, 1974, unless otherwise noted.

§ 15-1.5700 Scope of subpart.

This subpart applies to contracts for supplies and services other than for:

(a) The construction, alterations, or repair of buildings, bridges, roads, or other kinds of real property,

(b) Research and development, or (c) Contracts to be awarded on a cost reimbursement basis. However, it does not preclude the use of appropriate option provisions in such contracts. Where options are used in cost reimbursement contracts examples of suggested language is included in § 151.5706.

§ 15-1.5701 Definition of options.

As used in this subpart, an option is a provision in a contract under which, for a specified time, the Government may elect to purchase, at an established price or at a price that can be established by reference to some specific method of calculation which will

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make the price certain, additional quantities of the supplies or services called for by the contract, or may elect to extend the period of performance of the contract.

§ 15-1.5702 Applicability.

(a) Option clauses may be included in contracts where increased requirements within the period of contract performance are foreseeable, or where continuing performance beyond the original period of contract performance may be in the best interest of the Government. Since options require offerors to guarantee prices for definite periods of time with no guarantee that orders will be placed, their improper use could result in prices which are unfair to either the Government or the contractor. Option clauses may require that option quantities be offered at prices no higher than those for the initial quantities or they may allow option quantities to be offered without such limitation as to price. When additional requirements are foreseeable and subsequent competition would be impracticable because of such factors as production lead time and delivery requirements, the use of options which require prices no higher than those for the initial quantities may be preferable to later negotiating a price with the contractor (in lieu of exercising such an option) at a time when he is the only practical source. An option normally should not be used where it can reasonably be foreseen that (1) supplies will have to be procured at some future date in such a quantity that would constitute an economic production run, and (2) startup costs, production lead time, and probable delivery requirements would not preclude adequate future competition.

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(b) Option provisions and clauses shall not be included in contracts when

(1) The supplies or services being purchased are readily available on the open market, except that in the case of services, option clauses may be included for foreseeable requirements if the use of such option is considered to be in the best interest of the Government;

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