15-1.5704 Exercise of options.

15-1.5705 Examples of option articles for fixed price type contracts.

15-1.5706 Examples of option articles for cost reimbursement contracts.

AUTHORITY: The provisions of this Part 15-1 issued under sec. 205 (c), 63 Stat. 377, as amended; 40 U.S.C. 486(c).

§ 15-1.000 Scope of part.

(a) The Federal Procurement Regulations System brings together, in Title 41 of the Code of Federal Regulations, the procurement regulations applicable to the civilian agencies of the Government. This part establishes a system of Environmental Protection Agency (EPA) regulations (EPPR) for the codification and publication of policies and procedures of EPA which implement and supplement the Federal Procurement Regulations (FPR).

(b) It is the basic policy of EPA to apply Federal Procurement Regulations. Thus, as to most elements of the procurement process, substantive guidelines will be found by reference thereto. FPR is published as Chapter 1 of this Title 41. EPPR will be published as Chapter 15 of the same title.

[36 F.R. 7506, Apr. 21, 1971]

Subpart 15-1.0-Regulation System

SOURCE: The provisions of this Subpart 151.0 appear at 36 F.R. 7506, Apr. 21, 1971, unless otherwise noted.

§ 15-1.001 Scope of subpart.

This subpart establishes EPA Procurement Regulations (EPPR) and states their relationship to FPR.

§ 15-1.002 Purpose.

This subpart establishes for EPA uniform policies and procedures related to

the procurement of personal property and nonpersonal services (including construction) and real property by lease.

§ 15-1.003 Authority.

EPPR are prescribed by the Administrator under the Federal Property and Administrative Services Act of 1949, 63 Stat. 377, as amended, or other authority specifically cited.

§ 15-1.004 Applicability.

EPPR apply to all offices in EPA to the extent indicated unlesss otherwise provided by law. EPPR apply to procurements made within and outside the United States unless otherwise specified. § 15-1.006 Issuance.

§ 15-1.006-1 Code arrangement.

EPPR are issued in the Code of Federal Regulations as Chapter 15 of Title 41, Public Contracts and Property Management.

material has no counterpart in FPR Deviating material is defined in § 1-1.009 of this title. Where EPPR does not implement, supplement, or deviate from the FPR, the latter shall be applicable as issued. Deviations from FPR and EPPR will be processed in accordance with § 15-1.009-2 prior to publication. § 15-1.009 Deviation.

§ 15-1.009-2 Procedure.

Deviations from FPR and EPPR shall be kept to a minimum and controlled as follows:

(a) Deviations in both individual cases and classes of cases must be approved in advance by the Deputy Assistant Administrator 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
Disputes clause.

§ 15-1.318

[36 F.R. 20947, Nov. 2, 1971]

§ 15-1.318-1 Contracting officer's decision under a disputes clause.

(a) Action 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 to decision with the aid of such technical and legal advice as may be necessary. The contracting officer shall thoroughly examine the project officer's files on the contract to determine the project officer's relationship with the contractor. The contracting officer shall discuss the contractor's claim with the project officer, a representative of the office of the Associate General Counsel, Grants, Contracts and General Administration, and representatives of such

other EPA offices as are appropriate to the dispute, e.g., Contracts Management Division, Audit, etc. These representatives shall furnish the contracting officer their respective opinions. However, 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 agreements 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, unless expressly authorized, may not increase or decrease the contractual obligations of the contractor or of the Government.

(d) Use of Interior Board of Contract Appeals. Pursuant to an interagency agreement (EPA-IAG-0002 (R)) between the EPA and the Department of the Interior Board of Contract Appeals (IBCA), the IBCA will hear appeals from final decisions of EPA contracting officers issued pursuant to the disputes clause in EPA contracts. The rules and regulations of the IBCA appear in 43 CFR Part 4.

(e) Action upon receipt of notice of appeal. (1) When a notice of appeal in any form has been received by the contracting officer, he shall endorse thereon the date of mailing (or the date of receipt if the notice was otherwise conveyed) and within 5 days shall forward said notice of appeal to the IBCA by certified mail. The notice will be accompanied by a letter of transmittal stating the financial codes to be used by the Department of the Interior in billing EPA for services of the IBCA. At the same time, he shall telephonically notify the Assistant Gen

eral Counsel, Grants and Procurement, that the appeal has been received so that Government counsel may be appointed.

(2) Notice of appeal, whether filed within the time prescribed by the "Disputes" clause or not, will be submitted to the IBCA. The contracting officer will forward promptly every notice of appeal to IBCA even if the intention to appeal is only vaguely or indirectly expressed, and regardless of the form of the notice, or of the method by which the notice was furnished to the contracting officer.

(3) Copies of the notice of appeal will be sent simultaneously to the Contracts Policy and Review Branch. Contracts Management Division and to the Assistant General Counsel, Grants and Procurement.

(f) Duties of the contracting officerappeal file. (1) Following receipt of a notice of appeal, or advice that an appeal has been filed, the contracting officer shall promptly compile the appeal file (copies of all documents pertinent to the appeal), and three duplicate appeal files. The file shall include the following:

(i) The findings of fact and the decision from which the appeal is taken, and the letter or letters or other documents of claim in response to which the decision was issued;

(ii) The contract, and pertinent plans, specifications, amendments, and change orders;

(iii) Correspondence between the parties and other data pertinent to the appeal;

(iv) Transcripts of any testimony taken during the course of proceedings and affidavits, or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal with the Board;

(v) Such additional information as may be considered material.

(2) In addition to the above, the contracting officer will prepare an index listing each document included in the file submitted to the IBCA, and place copies of such index in the submission and duplicate files.

(3) Contracting Officers, in making the submission, may not submit original documents which are a part of the official contract file. Copies of the pertinent documents will be submitted.

(4) Within 15 days of receipt or advice of a notice of appeal the official and two duplicate files will be forwarded through the Contracts Management Division to

the Assistant General Counsel, Grants and Procurement, who will review the file and will forward the official appeal file to the IBCA within the 35-day time limitation set forth in 43 CFR 4.103(b). One duplicate file will be retained by the contracting officer, one by the Contracts Management Division, and one by the Assistant General Counsel.

(5) If for any reason the contracting officer anticipates that he cannot make a timely submission, he will immediately advise the Assistant General Counsel, Grants and Procurement by telephone of the extent of the anticipated delay and the reasons therefor. However, every effort will be exerted to make timely submissions.

(6) At the time of transmittal of the appeal file to the Board, the Assistant General Counsel, Grants and Procurement, shall notify the appellant of the transmittal, provide him with a listing of its contents, and afford him an opportunity to examine the file at the office of the contracting officer, at the office of the IBCA, or at some other suitable EPA office, for the purpose of satisfying himself as to the contents, and furnishing or suggesting any additional documentation deemed pertinent to the appeal. With his transmittal to the IBCA, the Assistant General Counsel, Grants and Procurement, shall certify that the appellant has been provided with the abovedescribed listing.

(g) Relations with Government counsel. Contracting officers are reminded that they must cooperate fully with the Government Counsel assigned to handle the case before the Board. The Government Counsel is the contracting officer's lawyer. It is especially important to advise Counsel of all pertinent evidence regardless of the effect it may have on the Government's case. No trial lawyer can be very effective if he learns of an embarrassing fact from his adversary during the hearing before the Board.

(h) Implementation—Adverse board decisions. Pursuant to Comptroller General Decision B-125096, September 9, 1963 (43 Comp. Gen. 231), contract modifications or releases given by the Government resulting from contract appeal board decisions adverse to the Government's position shall include the following provision:

"Provided, however, That this instrument is not binding if the decision of the Interior Board of Contract Appeals,

on which it is based, is later found to be in violation of the standards set forth in the Wunderlich Act (41 U.S.C. 321)." [36 FR 20947, Nov. 2, 1971, as amended at 38 FR 21497, Aug. 9, 1973] § 15-1.350 formation.

Release of procurement in

[37 FR 20028, Sept. 23, 1972]

§ 15-1.351 Purpose and scope.

(a) The "Freedom of Information Act," 5 U.S.C. sec. 552, provides that certain Government records shall be made available to the public upon request. This Act has been implemented by the Environmental Protection Agency (EPA) in 40 CFR Part 2 (36 F.R. 23058, December 3, 1971, as amended by 37 F.R. 9629, May 13, 1972), regulations which set forth agencywide guidelines and procedures for processing requests for release of information. Procurement activities must comply with the Act and with 40 CFR Part 2.

(b) Any record requested and properly identified by any member of the public will be made available unless it is exempt from public disclosure. Neither the fact that the person making the request does not have a particular interest in its subject matter, nor that he does not provide justification for the request, is a basis for denying his request. Certain records exempted from mandatory disclosure by the Act may nonetheless be disclosed, at the discretion of EPA, under the procedure set forth in 40 CFR 2.107. The provisions of 41 CFR (Federal Procurement Regulation) § 1-2.408 (c) and (d) will not be used by EPA to authorize deviation from 40 CFR Part 2.

(c) The Act contains nine exemptions from the general requirement of mandatory public disclosure of government documents. The EPA regulations also incorporate these exemptions. Several questions have been raised concerning the applicability of these exemptions to documents generated by EPA's procurement activities. Accordingly, in order to provide some guidance to EPA procurement personnel who must act on requests for such documents and to members of the public who may be interested in obtaining such documents, the Agency has decided to publish the following guidelines for the applicability of the Freedom of Information Act to procurement documents. The guidelines represent the opinion of the EPA Office of General Counsel concerning the possible