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(1) The claim arises from work within the scope of the Cooperative Agreement;
(2) A formal Cooperative Agreement amendment is executed specifically covering the costs before they are incurred;
(3) Settlement of the claim cannot occur without arbitration or litigation;
(4) The claim does not result from the recipient's mismanagement;
(5) The award official determines that there is a significant Federal interest in the issues involved in the claim; and
(6) In the case of defending against a contractor claim, the claim does not result from the recipient's responsibility for the improper action of others.
$35.6605 Privity of contract.
Neither EPA nor the United States shall be a party to any contract nor to any solicitation or request for proposals.
$35.6650 Quarterly progress reports.
(a) Reporting frequency. The recipient must submit progress reports quarterly on the activities delineated in the Statement of Work. EPA may not require submission of progress reports more often than quarterly. The reports must be submitted within 30 days of the end of each Federal Fiscal quarter.
(b) Content. The quarterly progress report must contain the following information:
(1) An explanation of work accomplished during the reporting period, delays, or other problems, if any, and a description of the corrective measures that are planned. For pre-remedial Cooperative Agreements, the report must include a list of the site-specific products completed and the estimated number of technical hours spent to complete each product.
(2) A comparison of the percentage of the project completed to the project schedule, and an explanation of significant discrepancies.
(3) A comparison of the estimated funds spent to date to planned expenditures and an explanation of significant discrepancies. For remedial, enforcement, and removal reports, the comparison must be on a per task basis.
(4) An estimate of the time and funds needed to complete the work required in the Cooperative Agreement, a comparison of that estimate to the time and funds remaining, and a justification for any increase.
$ 35.6610 Contracts awarded by a con
tractor. The recipient must require its contractor to comply with the following provisions in the award of contracts (i.e. subcontracts). (This section does not apply to a supplier’s procurement of materials to produce equipment, materials and catalog, off-the-shelf, or manufactured items.)
(a) The requirements regarding debarred, suspended, and voluntarily excluded persons in $35.6560 of this subpart.
(b) The limitations on contract award in $35.6550(a)(8) of this subpart.
(c) The requirements regarding minority and women's business enterprises, and small business in $35.6580 of this subpart.
(d) The requirements regarding specifications in 8 35.6555 (a)(6) and (c) of this subpart.
(e) The Federal cost principles in 40 CFR 31.22.
(f) The prohibited types of contracts in 835.6575(a) of this subpart.
(8) The cost, price analysis, and profit analysis requirements in $35.6585 of this subpart.
(h) The applicable provisions in $35.6595 (b) and (c) of this subpart.
$ 35.6655 Notification of significant de
velopments. Events may occur between the scheduled performance reporting dates which have significant impact upon the Cooperative Agreement-supported activity. In such cases, the recipient must inform the EPA project officer as soon as the following types of conditions become known:
(a) Problems, delays, or adverse conditions which will materially impair the ability to meet the objective of the award. This disclosure must include a
statement of the action taken, or contemplated, and any assistance needed to resolve the situation.
(b) Favorable developments which enable meeting time schedules and objectives sooner or at less cost than anticipated or producing more beneficial results than originally planned.
$35.6660 Property inventory reports.
(a) CERCLA-funded property—(1) Content. The report must contain the following information:
(i) Classification and value of remaining supplies;
(ii) Description of all equipment purchased with CERCLA funds, including its current condition;
(iii) Verification of the current use and continued need for the equipment by site, activity, and operable unit, as applicable;
(iv) Notification of any property which has been stolen or vandalized; and
(v) A request for disposition instructions for any equipment no longer needed on the project.
(2) Reporting frequency. The recipient must submit an inventory report to EPA at the following times:
(i) Within 90 days after completing any CERCLA-funded project or any response activity at a site; and
(ii) When the equipment is no longer needed for any CERCLA-funded project or any response activity at a site.
(b) Federally owned property-(1) Content. The recipient must include the following information for each federally owned item in the inventory report: (i) Description; (ii) Decal number; (iii) Current condition; and (iv) Request for disposition instructions.
(2) Reporting frequency. The recipient must submit an inventory report to the appropriate EPA property accountable officer at the following times:
(i) Annually, due to EPA on the anniversary date of the award;
(ii) When the property is no longer needed; and
(iii) Within 90 days after the end of the project period.
$ 35.6665 Procurement reports.
(a) Department of Labor (DOL) Reports—(1) Content. The recipient must notify the DOL Regional Office of Compliance, in writing, of each construction contract which has or is expected to have an aggregate value of over $10,000 within a 12-month period. The report must include the following:
(i) Construction contractor's name, address, telephone number, and employee identification number;
(ii) Award amount;
(iii) Estimated start and completion dates; and
(iv) Project number, name, and site location.
(2) Reporting frequency. The recipient must notify the DOL Office of Compliance within 10 calendar days after the award of each such construction contract. The recipient must submit a copy of the report to the EPA project officer.
(b) Minority and women's business enterprise (MBE/WBE) Reports. (1) The recipient must report on its use of MBE and WBE firms by submitting a completed Minority and Women's Business Utilization Report (SF-334) to the award official. Reporting commences with the recipient's award of its first contract and continues until it and its contractors have awarded their last contract for the activities or tasks identified in the Cooperative Agreement. The recipient must submit the MBE/WBE Utilization Report within 30 days after the end of each Federal fiscal quarter, regardless of whether the recipient awards a contract to an MBE or WBE during that quarter.
(2) The recipient must also report on its efforts to encourage MBE participation in the Superfund program pursuant to CERCLA $ 105(f). Information on the recipient's efforts to encourage MBE participation in the Superfund program may be included in each SF334 submitted quarterly, but is required in the SF-334 submitted for the fourth quarter, due November 1 of each year.
$35.6670 Financial reports.
(a) General. The recipient must comply with the requirements regarding financial reporting described in 40 CFR 31.41.
(b) Financial Status Report—(1) Content. (i) The Financial Status Report (SF-269) must include financial information by site, activity, and operable unit, as applicable.
(ii) A final Financial Status Report (FSR) must have no unliquidated obligations. If any obligations remain unliquidated, the FSR is considered an interim report and the recipient must submit a final FSR to EPA after liquidating all obligations.
(2) Reporting frequency. The recipient must file a Financial Status Report as follows:
(i) Annually due 90 days after the end of the Federal fiscal year or as specified in the Cooperative Agreement; or if quarterly or semiannual reports are required in accordance with 40 CFR 31.41(b)(3), due 30 days after the reporting period;
(ii) Within 90 calendar days after completing each CERCLA-funded response activity at a site (submit the FSR only for each completed activity); and
(iii) Within 90 calendar days after termination or closeout of the Cooperative Agreement.
(2) Manufacturer's serial number, model number, or other identification number;
(3) Source of the property, including the assistance identification number;
(4) Information regarding whether the title is vested in the recipient or EPA;
(5) Unit acquisition date and cost; (6) Percentage of EPA's interest;
(7) Location, use and condition (by site, activity, and operable unit, as applicable) and the date this information was recorded; and
(8) Ultimate disposition data, including the sales price or the method used to determine the price, or the method used to determine the value of EPA's interest for which the recipient compensates EPA in accordance with $$ 35.6340, 35.6345, and 35.6350 of this subpart.
(d) Procurement records—(1) General. The recipient must maintain records which support the following items, and must make them available to the public:
(i) The reasons for rejecting any or all bids; and
(ii) The justification for a procurement made on a noncompetitively negotiated basis.
(2) Procurements in excess of $25,000. The recipient's records and files for procurements in excess of $25,000 must include the following information, in addition to the information required in paragraph (d)(1) of this section:
(i) The basis for contractor selection;
(ii) A written justification for selecting the procurement method;
(iii) A written justification for use of any specification which does not provide for maximum free and open competition;
(iv) A written justification for the choice of contract type; and
(v) The basis for award cost or price, including a copy of the cost or price analysis made in accordance with $ 35.6585 of this subpart and documentation of negotiations.
(e) Other records. The recipient must maintain records which support the following items:
(1) Time and attendance records and supporting documentation;
RECORDS REQUIREMENTS UNDER A
$35.6700 Project records.
The lead agency for the response action must compile and maintain an administrative record consistent with section 113 of CERCLA, the National Contingency Plan, and relevant EPA policy and guidance. In addition, recipients of assistance (whether lead or support agency) are responsible for maintaining project files as described below.
(a) General. The recipient must maintain project records by site, activity, and operable unit, as applicable.
(b) Financial records. The recipient must maintain records which support the following items:
(1) Amount of funds received and expended; and
(2) Direct and indirect project cost.
(c) Property records. The recipient must maintain records which support the following items:
(1) Description of the property;
(2) Documentation of compliance with statutes and regulations that apply to the project; and
(3) The number of site-specific technical hours spent to complete each preremedial product.
policy, deliberative, and enforcement documents which may be held confidential, ensure that all files are available to the public.
(c) Contractor requirements. The recipient must require its contractor to comply with the requirements regarding records access described in 40 CFR 31.36(i)(10).
OTHER ADMINISTRATIVE REQUIREMENTS
FOR COOPERATIVE AGREEMENTS
The recipient must comply with the requirements regarding changes to the Cooperative Agreement described in 40 CFR 31.30.
$35.6755 Monitoring program perform
The recipient must comply with the requirements regarding program performance monitoring described in 40 CFR 31.40 (a) and (e).
$35.6705 Records retention.
(a) Applicability. This requirement applies to all financial and programmatic records, supporting documents, statistical records, and other records which are required to be maintained by the terms of this subpart, program regulations, or the Cooperative Agreement, or are otherwise reasonably considered as pertinent to program regulations or the Cooperative Agreement.
(b) Length of retention period. The recipient must maintain all records for 10 years following submission of the final Financial Status Report unless otherwise directed by the EPA award official, and must obtain written approval from the EPA award official before destroying any records. If any litigation, claim, negotiation, audit, cost recov
or other action involving the records has been started before the expiration of the ten-year period, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular ten-year period, whichever is later.
(C) Substitution of microform. Microform copies may be substituted for the original records. The recipient must have written EPA approval before destroying original records. The microform copying must be performed in accordance with the technical regulations concerning micrographics of Federal Government records (36 CFR part 1230) and EPA records management procedures (EPA Order 2160).
(d) Starting date of retention period. The recipient must comply with the requirements regarding the starting dates for records retention described in 40 CFR 31.42(c) (1) and (2).
$35.6760 Enforcement and termination
for convenience. The recipient must comply with all terms and conditions in the Cooperative Agreement, and is subject to the requirements regarding enforcement of the terms of an award and termination for convenience described in 40 CFR 31.43 and 31.44.
$ 35.6765 Non-Federal audit.
The recipient must comply with the requirements regarding non-Federal audits described in 40 CFR 31.26.
The recipient must comply with the requirements regarding dispute resolution procedures described in 40 CFR 31.70.
$35.6775 Exclusion of third-party ben
efits. The Cooperative Agreement benefits only the signatories to the Cooperative Agreement.
$35.6710 Records access.
(a) Recipient requirements. The recipient must comply with the requirements regarding records access described in 40 CFR 31.42(e).
(b) Availability of records. The recipient must, with the exception of certain
$ 35.6780 Closeout.
(a) Closeout of a Cooperative Agreement, or an activity under a Cooperative Agreement, can take place in the following situations:
(1) After the completion of all work for a response activity at a site; or
(2) After all activities under a Cooperative Agreement have been pleted; or
(3) Upon termination of the Cooperative Agreement.
(b) The recipient must comply with the closeout requirements described in 40 CFR 31.50 and 31.51.
$ 35.6785 Collection of amounts due.
The recipient must comply with the requirements described in 40 CFR 31.52 regarding collection of amounts due. $ 35.6790 High risk recipients.
If EPA determines that a recipient is not responsible, EPA may impose restrictions on the award as described in 40 CFR 31.12.
REQUIREMENTS FOR ADMINISTERING A SUPERFUND STATE CONTRACT (SSC)
$ 35.6800 General.
An SSC is required when either EPA or a political subdivision is the lead agency for a CERCLA response. This rule does not address whether Indian Tribes are subject to the requirements in $35.6805(i)(2) (See $35.610(a)).
(a) EPA-lead SSC (Two-party SSC). (1) An SSC with a State or Indian Tribe is required before EPA can obligate or transfer funds for an EPA-lead remedial action.
(2) The State must comply with the requirements described in 88 35.6805 and 35.6815 of this subpart. The Indian Tribe must comply with the requirements described in $35.6805 (a) through (h), (i)(4), (1) through (v); $35.6815(b); and, if appropriate, $ 35.6815 (c) and (d).
(b) Political subdivision-lead SSC (Three-party SSC). (1) To ensure State involvement as required under section 121(f) of CERCLA and subpart F of the National Contingency Plan, an SSC is required between EPA, the State and a political subdivision before a political subdivision may take the lead for any phase of remedial response. The SSC must contain, or must be amended to include, the State's assurances pursuant to $35.6805(i) of this subpart before EPA obligates funds for remedial action set forth in the Statement of Work of the SSC.
$ 35.6805 Contents of an SSC.
The SSC must include the following provisions:
(a) General authorities, which documents the relevant statutes and regulations (of each government entity that is a party to the contract) governing the contract;
(b) Purpose of the SSC, which describes the response activities to be conducted and the benefits to be derived;
(c) Negation of agency relationship between the signatories, which states that no signatory of the SSC can represent or act on the behalf of any other signatory in any matter associated with the SSC;
(d) A site description, pursuant to $35.6105(a)(2)(i) of this subpart;
(e) A site-specific Statement of Work, pursuant to $35.6105(a)(2)(ii) of this subpart and a statement of whether the contract constitutes an initial SSC or an amendment to an existing contract;
(f) A statement of intention to follow EPA policy and guidance;
(g) A project schedule to be prepared during response activities;
(h) A statement desinating a primary contact for each party to the contract, which designates representatives to act on behalf of each signatory in the implementation of the contract. This statement must document the authority of each project manager to approve modifications to the project so long as such changes are within the scope of the contract and do not significantly impact the SSC;
(i) The CERCLA assurances, as appropriate, as described below:
(1) Operation and maintenance. The State must provide an assurance irsuant to $35.6105(b)(1) of this subpart.
(2) Twenty-year waste capacity. The State must provide an assurance pursuant to $35.6105(b)(3) of this subpart.
(3) Off-site storage, treatment, or disposal. If off-site storage, destruction, treatment, or disposal is required, the State must provide an assurance pursuant to $35.6105(b)(4) of this subpart; the