Page images

istrator for Administration. Requests for approval of such deviations shall be submitted through the Director of Contracts Management to the Deputy Assistant Administrator for Administration. The requests shall cite the specific part of FPR or EPPR from which it is desired to deviate, shall set forth the nature of the deviations, and shall give the reasons for the action requested.

Subpart 15-1.3-General Policies § 15-1.318 Disputes clause. 136 F.R. 20947, Nov. 2, 1971) $ 15–1.318-1 Contracting officer's deci.

sion under a disputes clause. (a) Act prior to issuance of a final decision. (1) In resolving a dispute, the contracting officer must understand that the Environmental Protection Agency (EPA) does not seek litigation as an end in itself. The contracting officer should consider the advisability of attempting to mediate the dispute or hear out the contractor through discussion meetings or other means. The contracting officer is required to effect the prompt determination of disputes arising out of the performance of contracts. He is required to give his personal and independent consideration to the making of each determination or decision with the aid of such technical and legal advice as may be necessary. He must not base his decision on summary advice from members of his legal, technical, and administrative team, since the decision must be the result of the independent judgment and discretion of the contracting officer. He must obtain and study all the facts which bear upon the issue before him. He must insist that his advisors in technical areas give him concrete advice on how to decide and present him with a detailed, understandable statement of the reasoning process by which they arrive at their conclusions.

(2) When a dispute cannot be resolved by agreement, the contracting officer should prepare a final decision on the matter in dispute. The decision should include the allegations made by the contractor, the specific findings of fact which form the basis for the decision, and a terminal paragraph substantially as prescribed in FPR 1-1.318–1. The contracting officer should insure that the contract file includes the following information:

(i) The complete contract including all amendments, supplemental agree

ments and change orders, pertinent plans, specifications and drawings, and all pertinent preaward papers;

(ii) All correspondence and memoranda, and minutes of meetings or telephone conversations pertinent to the dispute;

(iii) The names and addresses of all persons, including contractor personnel, if known, having information concerning the facts in dispute;

(3) Any additional information or advice which the contracting officer considered in forming his decision, including such items as interoffice memoranda, sample photographs, and inspection, audit and financial reports.

(b) Issuance of final decision. (1) The finality of a final decision under FPR 1-1.318–1 depends upon the contracting officer's compliance with the regulations. If a TWX is used, it should be a complete final decision containing the terminal paragraph substantially as prescribed by FPR 1-1.318–1. The final decision should be promptly mailed to the contractor by certified mail, return receipt requested.

(2) Since the Board's jurisdiction of an appeal depends upon contractor's mailing or otherwise furnishing a notice of appeal within 30 days following receipt by the contractor of the final decision, the contracting officer shall preserve proof of the date of contractor's receipt of the final decision and of the date of mailing, furnishing or filing of the notice of appeal. Thus, the contracting officer should preserve the return receipt covering the final decision, and the postmarked envelope in which the notice of appeal was received, and if the notice was furnished in some way other than mailing, the contracting officer should endorse on the document the date of receipt.

(c) Prohibition of preliminary final decisions. Contracting officers and their duly authorized representatives are cautioned against the practice of using "preliminary final decisions,” when the proper course is a final decision by the contracting officer. "Preliminary final decisions” generally act in favor of the contractor and give him valuable time in which to study the Government position and to develop rebuttals. A final decision by the contracting officer obligates the contractor to decide within 30 days whether he will appeal. This is the prudent and prompt method of disposal of claims and potential disputes. Final decisions may be made only by authorized

contracting officers; other personnel, un- (ii) The contract, and pertinent plans, less expressly authorized, may not in- specifications, amendments, and change crease or decrease the contractual obli- orders; gations of the contractor or of the (iii) Correspondence between the parGovernment.

ties and other data pertinent to the (d) Use of Interior Board of Contract appeal; Appeals. Pursuant to an interagency (iv) Transcripts of any testimony agreement (EPA-IAG-0002(R)) between taken during the course of proceedings the EPA and the Department of the Inte- and affidavits, or statements of any witrior Board of Contract Appeals (IBCA), nesses on the matter in dispute made the IBCA will hear appeals from final de- prior to the filing of the notice of appeal cisions of EPA contracting officers issued with the Board; pursuant to the disputes clause in EPA (v) Such additional information as contracts. The rules and regulations of may be considered material. the IBCA appear in 43 CFR Part 4.

(2) In addition to the above, the con(e) Action upon receipt of notice of tracting officer will prepare an index appeal. (1) When a notice of appeal in listing each document included in the any form has been received by the con- file submitted to the IBCA, and place tracting officer, he shall endorse thereon copies of such index in the submission the date of mailing (or the date of receipt and duplicate files. if the notice was otherwise conveyed) (3) Contracting Officers, in making the and within 5 days shall forward said no- submission, may not submit original doctice of appeal to the IBCA by certified uments which are a part of the official mail. The notice will be accompanied by

contract file. Copies of the pertinent doca letter of transmittal stating the finan

uments will be submitted. cial codes to be used by the Department (4) Within 15 days of receipt or advice of the Interior in billing EPA for services of a notice of appeal the official and two of the IBCA. At the same time, he shall duplicate files will be forwarded through telephonically notify the Assistant Gen- the Contracts Management Division to eral Counsel, Grants and Procurement,

the Assistant General Counsel, Grants that the appeal has been received so that and Procurement, who will review the Government counsel may be appointed.

file and will forward the official appeal (2) Notice of appeal, whether filed

file to the IBCA within the 35-day time within the time prescribed by the “Dis

limitation set forth in 43 CFR 4.103(b). putes” clause or not, will be submitted to

One duplicate file will be retained by the the IBCA. The contracting officer will

contracting officer, one by the Contracts forward promptly every notice of appeal

Management Division, and one by the to IBCA even if the intention to appeal is

Assistant General Counsel. only vaguely or indirectly expressed, and (5) If for any reason the contracting regardless of the form of the notice, or

officer anticipates that he cannot make of the method by which the notice was

a timely submission, he will immediately furnished to the contracting officer.

advise the Assistant General Counsel, (3) Copies of the notice of appeal will

Grants and Procurement by telephone of be sent simultaneously to the Contracts the extent of the anticipated delay and Policy and Review Branch, Contracts

the reasons therefor. However, every efManagement Division and to the Assist

fort will be exerted to make timely ant General Counsel, Grants and Pro

submissions. curement.

(6) At the time of transmittal of the (f) Duties of the contracting officer

appeal file to the Board, the Assistant appeal file. (1) Following receipt of a no

General Counsel, Grants and Procuretice of appeal, or advice that an appeal ment, shall notify the appellant of the has been filed, the contracting officer

transmittal, provide him with a listing shall promptly compile the appeal file

of its contents, and afford him an oppor(copies of all documents pertinent to the

tunity to examine the file at the office of appeal), and three duplicate appeal files.

the contracting officer, at the office of The file shall include the following:

the IBCA, or at some other suitable EPA

office, for the purpose of satisfying him(i) The findings of fact and the deci

self as to the contents, and furnishing or sion from which the appeal is taken, and

suggesting any additional documentation the letter or letters or other documents deemed pertinent to the appeal. With of claim in response to which the deci- his transmittal to the IBCA, the Assistsion was issued;

ant General Counsel, Grants and Procurement, shall certify that the appellant Suspended, or Declared Ineligible Bidders has been provided with the above- List. described listing.

(b) Collectively, the following docu(g) Relations with Government coun- ments shall constitute the EPA list: sel. Contracting officers are reminded (1) Consolidated list of current adthat they must cooperate fully with the ministrative debarments, suspensions, or Government Counsel assigned to handle ineligibles by executive agencies, and pethe case before the Board. The Govern- riodic supplements thereto, compiled and ment Counsel is the contracting officer's published by the Office of Compliance, lawyer. It is especially important to ad- General Services Administration (GSA). vise Counsel of all pertinent evidence This publication is a combined list of regardless of the effect it may have on such actions taken, including the basis the Government's case. No trial lawyer therefor, from notifications furnished can be very effective if he learns of an GSA by the Department of Defense and embarrassing fact from his adversary executive agencies and distributed to all during the hearing before the Board. executive agencies.

(h) ImplementationAdverse board (2) Consolidated list of persons or decisions. Pursuant to Comptroller Gen- firms against whom action has been taken eral Decision B-125096, September 9, for violations under public contracts con1963 (43 Comp. Gen. 231), contract modi- cerning labor standard provisions, and fications or releases given by the Gov- periodic supplements thereto, compiled ernment resulting from contract appeal by the Comptroller General of the United board decisions adverse to the Govern- States (GAO). ment's position shall include the fol- (3) Consolidated list of concerns and lowing provision:

individuals debarred, suspended, or de"Provided, however, That this instru- clared ineligible by the Environmental ment is not binding if the decision of Protection Agency to participate in its the Interior Board of Contract Appeals, procurement program under one or more on which it is based, is later found to be of the bases set forth in FPR 1-1.602-1 in violation of the standards set forth and in accordance with this regulation. in the Wunderlich Act (41 U.S.C. 321)." (c) The Director, Contracts Manage136 F.R. 20947, Nov. 2, 1971)

ment Division, will effect direct distribu

tion of the consolidated and interim Subpart 15–1.6-Debarred,

GSA, GAO, and EPA lists to authorized Suspended, and Ineligible Bidders

personnel. The list shall not be disclosed SOURCE: The provisions of this Subpart 15

to the public. 1.6 appear at 36 F.R. 24003, Dec. 17, 1971,

§ 15-1.602-1 Bases for entry on the deunless otherwise noted.

barred, suspended, and ineligible $ 15–1.600 Scope of subpart.

list. This subpart prescribes the Environ- (a) The Deputy Assistant Administramental Protection Agency (EPA) policy tor for Administration makes the adminand procedures for establishment, use, istrative determinations prescribed by maintenance, and distribution of a de- FPR 1-1.602-1 (d), (f), and (g). barred, suspended, and ineligible bidders (b) The Director, Office of Equal Oplist, for debarring or suspending bidders portunity, directs that action prescribed for cause.

by FPR 1-1.602–1(e). § 15–1.602 Establishment, maintenance,

$ 15-1.603 Treatment to be accorded and distribution of a list of concerns

firms or individuals in debarred, sus. or individuals debarred, suspended, pended, or ineligible status. or declared ineligible.

The Deputy Assistant Administrator (a) The Director, Contracts Manage- for Administration makes the determinament Division, is responsible for estab

tions required by FPR 1-1.603 (a), (d), lishment and maintenance of a master and (f). consolidated list or file of firms and in

$ 15-1.604 Causes and conditions apdividuals who are administratively or plicable to determinations of debarlegally debarred or suspended from EPA

ment. contracting and subcontracting and from Determination to debar or take other whom bids and proposals will not be

action concerning a firm or individual solicited as provided in FPR 1-1.603. This for a cause or condition for a specified list will be known as the EPA Debarred, period of time as provided in FPR

1-1.604 shall be made by the Deputy Assistant Administrator for Administration. Whenever cause for debarment becomes known to any contracting officer, the matter shall be submitted, with recommendations of the Director, Contracts Management Division, to the Deputy Assistant Administrator for Administration for appropriate action. The documented file of the case will be included in the submission. $ 15-1.604–1 Procedural requirements

relating to the imposition of debar

ment. (a) Hearings. Hearings requested in connection with debarment proceedings shall be conducted before the Deputy Assistant Administrator for Administration, or his designee. An opportunity shall be afforded to the firm or individual to appear with witnesses and counsel, to present facts or circumstances showing cause why such firm or individual should not be debarred. If the firm or individual elects not to appear, the reviewing authority will make the decision based on the facts on record and such additional evidence as may be furnished by the parties involved. After consideration of the facts, the reviewing authority shall notify the firm or individual of the final decision. $ 15-1.605 Suspension of bidders. $ 15-1.605-1 Causes and conditions un

der which EPA may suspend con

tractors. Any contracting officer may recommend suspension of bidders for the causes and conditions set forth in FPR 1-1.605–1. TI se recommendations shall be accompanied by the documented file in the case and be submitted through the Director, Contracts Management Division, to the Deputy Assistant Administrator for Administration for determination. § 15-1.605–2 Notice of suspension.

The Director, Contracts Management Division, or his designee is responsible for preparing the notification to bidders of suspension as required by FPR 1-1.605–4. The notification will be prepared for the signature of the Deputy Assistant Administrator for Administration. $ 15-1.606 Agency procedures.

The Director, Contracts Management Division, is responsible for complying with the provisions of FPR 1-1.606.

Subpart 15-1.7—Small Business

Concerns SOURCE: The provisions of this Subpart 15–1.7 appear at 36 F.R. 14187, July 31, 1971, unless otherwise noted. $ 15–1.704 Agency program direction

and operation. § 15–1.704–1 Small business assistance

officer. The Administrator will designate an official as the Agency's small business assistance officer. The small business assistance officer will be responsible, either on a full-time basis or as a collateral duty, for the establishment, implementation, and execution of the small business program. He will be the central point of contact for inquiries concerning the small business program from industry, the Small Businses Administration (SBA), the Congress, the Office of the Administrator, Environmental Protection Agency, and others. His duties shall include developing a plan of operation to increase the share of contracts awarded to small business by Environmental Protection Agency. § 15–1.704–2 Small business specialist.

(a) Each chief of Contract Operations shall appoint by name and in writing a small business specialist for each procurement office over which he exercises control, to perform the duties set forth in this section on either a fulltime or part-time basis. Only individuals possessing the necessary business acumen, knowledge of the Environmental Protection Agency's procurement policies and procedures, and training and background to accomplish effectively the objective of the small business program shall be considered for appointment. In any instance where the appointee's duty as small business specialist is to be a part-time basis, the appointment shall clearly indicate that the part-time nature of the assignment shall in no way relieve the individual from full responsibility for effectively accomplishing the activity's small business program requirements.

(b) The small business specialist appointed pursuant to paragraph (a) of this section shall perform such of the following duties as are appropriate for his procurement office:

(1) Maintain a program designed to locate capable small business sources for current and future procurements;

(2) Coordinate inquiries and requests either (a) concur in the recommendation for advice from small business concerns or (b) disapprove the recommendation, on procurement matters;

stating in writing his reasons for disap(3) Review proposed solicitations for proval. If the contracting officer disapsupplies and services, assure that small proves the recommendation of a small business concerns will be afforded an business specialist, the small business equitable opportunity to compete, and, as specialist may appeal to the appropriate appropriate, initiate recommendations chief of Contract Operations, whose decifor small business set-asides;

sion shall be final. (4) Take action to assure the avail

§ 15–1.706–50–3 Withdrawal or modi. ability of adequate specifications and

fication of set-asides. drawings, when necessary, to obtain small business participation in a procure

Withdrawal or modification of an ment;

individual or class set-aside which was (5) Review proposed procurements for

originally established upon the recompossible breakout of items suitable for mendation of the small business specialprocurement from small business con- ist may be proposed by the contracting cerns;

officer by giving notice, containing the (6) Advise small business concerns reason for the proposed withdrawal or with respect to the financial assistance modification, to the small business speavailable under existing laws and regula

cialist. If the small business specialist tions and assist such concerns in apply

does not agree to a withdrawal or modiing for financial assistance;

fication, he may appeal to the appro(7) Participate in determinations con- priate chief of Contract Operations, cerning the responsibility of a prospec

whose decision shall be final. tive small business contractor;

$ 15–1.706–50–4 Small business

set(8) Participate in the evaluation of

aside for proposed construction proa prime contractor's small business sub

curement. contracting programs; (9) Assure that adequate records are

(a) Each proposed procurement for

construction estimated to cost between maintained, and accurate reports prepared, concerning small business par

$2,000 and $500,000 shall be set aside for ticipation in the procurement program;

exclusive small business participation. (10) Make available to SBA copies of

Such set-asides shall be considered to be solicitations, when so requested; and

unilateral small business set-asides, and (11) Act as liaison between the con

shall be withdrawn, in accordance with tracting officer and the appropriate SBA

the procedure of FPR 1-1.705–3 and office in connection with set-asides, cer

§ 15–1.706–50–3, only if found not to serve tificates of competency, size classifica- the best interest of the Government. tion, and any other matter in which the (b) Small business set-aside prefersmall business program may be involved. ences for construction procurements in $ 15–1.706–50 Procurement set-asides

excess of $500,000 shall be considered on for small business when an SBA rep- a case-by-case basis. resentative is not available.

Subpart 15-1.51-Novation Agree$ 15-1.706–50–) General.

ments and Change of Name AgreeIf no SBA representative is available, ments the small business specialist shall ini

SOURCE: The provisions of this Subpart tiate recommendations to the contract

15-1.51 appear at 36 F.R. 8447, May 6, 1971, ing officer for small business set-asides

unless otherwise noted. with respect to individual procurements or classes of procurements or portions

$ 15–1.5100 Scope of subpart. thereof.

This subpart prescribes the policy and $ 15–1.706-50-2 Review of set-aside

procedures for (a) recognition of a sucrecommendations initiated by small cessor in interest to Government conbusiness specialist.

tracts when such interests are acquired When a small business specialist has

incidental to a transfer of all the assets recommended that all, or a portion, of an of a contractor or the part of his assets individual procurement or class of pro- involved in the performance of the concurements be set aside for small business, tracts, (b) a change of name of a conthe contracting officer shall promptly tractor, and (c) single activity execu

« PreviousContinue »