check to a grantee upon its request or through the use of predetermined payment schedules before payments are made by the grantee. (b) "Date of completion" means the date when all work under a grant is completed or the date in the grant award document, or any supplement or amendment thereto, on which Federal assistance ends. (c) "Disallowed costs" means those charges to a grant which the Bureau or its representative determines to be unallowable. (d) "Economic enterprise" means any commercial, industrial, agricultural or business activity that is at least 51 percent Indian owned, established or organized for the purpose of profit. (e) "Excess property" means property under the control of the Bureau which, as determined by the Commissioner, is no longer required for its needs. (1) "Expendable personal property" means all tangible personal property other than nonexpendable property. (g) "Grant closeout" means the process by which the Bureau determines that all applicable administrative actions and all required work of the grant have been completed by the grantee and the Bureau. (h) "Grantee" means the entity which is responsible for administration of the grant. (1) "Indian tribe" means any Indian Tribe, Band, Nation, Rancheria, Pueblo, Colony or Community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) which is recognized as eligible by the Secretary for the special programs and services provided by the Secretary to Indians because of their status Indians. as (j) "Letter of credit" means an instru- ment certified by an authorized official of the Bureau which authorizes a grantee to draw funds when needed from the Treasury, through a Federal Reserve Bank and the grantee's commercial bank, in accordance with the provisions of Treasury Circular No. 1075. (k) "Nonexpendable personal property" means tangible personal property having useful life of more than one year and an acquisition cost of $300 or more per unit. A grantee may use its own deflnition of nonexpendable personal property provided that such definition would at least include all tangible personal property as defined above. (1) "Personal property" means property of any kind except real property. It may be tangible-having physical existence, or intangible-having no physical existence, such as patents, inventions, and copyrights. (m) "Real property" means land, land improvements, structures and appurtenances thereto, excluding removable personal property, machinery and equip ment. (n) "Reimbursement by Treasury check" means a payment made to a grantee with a Treasury check upon re (o) "Suspension of a grant" means an action by the Bureau which temporarily suspends assistance under the grant pending corrective action by the grantee or pending decision to terminate the grant by the Bureau. (p) "Termination of a grant" means the cancellation of Federal assistance, in whole or in part, under a grant at any time prior to the date of completion. (q) "Tribal organization" means the recognized governing body of any Indian tribe: any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body; or any legally established organization of Indians which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of activities. (a) Except for situations described in paragraphs (b) and (c) of this section, the Bureau will not: (1) Require physical segregation of cash depositories for Bureau grant funds provided to a grantee. (2) Establish any eligibility requirements for cash depositories in which Bureau grant funds are deposited by grantees or their subgrantees. (b) A separate bank account shall be used when payments under letter of credit are made on a "check-paid" basis in accordance with agreements entered into by a grantee, the Bureau, and the banking institutions involved. A checkpaid basis letter of credit is one under which funds are not drawn from the Treasury until the grantee's checks have been presented to its bank for payment. (c) Consistent with the national goal of expanding the opportunties for minority business enterprises, grantees are encouraged to use minority banks. § 406.4 Bondings and insurance. In administering Bureau grants, grantees shall observe their regular requirements and practices with respect to bonding and insurance. The Bureau will not impose additional bonding and insurance requirements, including fidelity bonds, except as provided in paragraphs (a) and (b) of this section. (a) The recipient of a Bureau grant which requires contracting for construction or facility improvement (including any Bureau grant which provides for alterations or renovations of real property) shall follow its own requirements and practices relating to bid guarantees, performance bonds, and payment bonds except for contracts exceeding $100,000. For contracts exceeding $100,000, the minimum requirements shall be as follows: (1) A bid guarantee from each bidder equivalent to five percent of the bid price. The bid guarantee shall consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that 41011 the bidder will, upon acceptance of his bid, execute such contractual documents as may be required within the time specified. (2) A performance bond on the part of the contractor for 100 percent of the contract price. A performance bond is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under the contract. (3) A payment bond on the part of the part of the contractor for 100 per cent of the contract price. A payment bond is one executed in connection with a contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for in the contract. (b) Where, in connection with a Bureau grant, the Bureau also guarantees the payment of money borrowed by the grantee, the Bureau may at its discretion require adequate bonding and insurance if the bonding and insurance requirements of the grantee are not deemed to be sufficient to protect adequately the interests of the Federal Government. § 406.5 Recordkeeping. (a) The Bureau shall not impose record retention requirements over and above those established by the grantee except that financial records, supporting documents, statistical records, and all other records pertinent to a Bureau grant, or to any subgrant (or negotiated contract exceeding $2500) under a grant, shall be retained for a period of three years, with the following qualifications: (1) The records shall be retained beyond the three year period if audit findings have not been resolved. (2) Records for nonexpendable property which was acquired with Bureau grant funds shall be retained for three years after its final disposition. (3) When grant records are transferred to or maintained by the Bureau, the three-year retention requirement is not applicable to the grantee. (b) The retention period starts from the date of submission of the final expenditure report or, for grants which are renewed annually, from the date of the submission of the annual expenditure report. (c) Grantees are authorized, if they desire, to substitute microfilm copies in lieu of original records. (d) The Bureau shall request transfer of certain records to its custody from grantees when it determines that the records possess long-term retention value. However, in order to avoid duplicate recordkeeping the Bureau may make arrangements with the grantee for the grantee to retain any records which are continuously needed for joint use. (e) The Secretary of the Interior and the Comptroller General of the United States, or any of their duly authorized representatives shall have access to any books, documents, papers, and records of the grantees and their subgrants which are pertinent to a specific grant program for the purpose of making audit, examination, excerpts, transcripts and copies at government expense. FEDERAL REGISTER, VOL. 40, NO. 172-THURSDAY, SEPTEMBER 4, 1975 41012 (1) Unless otherwise required by law, the Bureau shall not place restrictions on grantees which will limit public access to the grantee's records created as part of the grant except when records must remain confidential. Following are some of the reasons for withholding records: (1) Prevent a clearly unwarranted invasion of personal privacy: PROPOSED RULES the accrual basis from tribal organizations whose records are not maintained on that basis. However, when accrual reporting is required by law, tribal organizations whose records are not maintained on that basis will not be required to convert their accounting systems to the accrual basis; they may develop the accrual information through an analysis of the (2) Specifically required by statute or documentation on hand or on the basis Executive Order to be kept secret: (3) Commercial or financial information obtained from a person or firm on a privileged or confidential basis. § 406.6 Program income. (a) No grantee receiving a grant shall be held accountable for interest earned on grant funds, pending their disbursement for program purposes. (b) Proceeds from the sale of real or personal property, either provided by the Federal Government or purchased in whole or in part with Federal funds, shall be handled in accordance with § 406.11. (c) Royalties received from copyrights and patents produced under the grant during the grant period shall be retained by the grantee and, in accordance with the grant agreement, be either added to the funds already committed to the program or deducted from total allowable project costs for the purpose of determining the net costs on which the Bureau share of costs will be based. After termination or completion of the grant, the Bureau share of royalties in excess of $200 received annually shall be returned to the Bureau in the absence of other specific agreements between the Bureau and the grantee. The Bureau share of royalties shall be computed on the same ratio basis as the Bureau share of the total project cost. (d) All other program income earned during the grant period shall be retained by the grantee and, in accordance with the grant agreement, shall be either: (1) Added to funds committed to the project by the Bureau and the grantee and be used to further eligible program objectives, or (2) Deducted from the total project costs for the purpose of determining the net costs on which the Bureau share of costs will be based. (e) Grantees shall record the receipt and expenditures of revenues (such as taxes, special assessments, levies, fines, etc.) as a part of grant project transactions when such revenues are specifically earmarked for a grant project in accordance with grant agreements. $ 406.7 Standards for grantee financial management systems. (a) Grantee financial management systems for grants and subgrantee financial management systems for subgrants shall provide for: (1) Accurate, current, and complete disclosure of the financial results of each grant program in accordance with Federal reporting requirements and for each subgrant in accordance with the grantees' requirements. Except when specifically required by law, the Bureau will not require financial reporting on of best estimates. (2) Records which identify adequately the source and application of funds for grant or subgrant-supported activities. These records shall contain information pertaining to grant or subgrant awards and authorizations, obligations, unobligated balances, assets, liabilities, outlays, and income. (3) Effective control over and accountability for all grant or subgrant funds, and real and personal property acquired with grant or subgrant funds. Grantees and subgrantees shall adequately safeguard all such property and shall assure that it is used solely for authorized purposes. (4) Comparison of actual with budgeted amounts for each grant or subgrant, and, when specifically required by the performance reporting requirements of the grant or subgrant, relation of flnancial information with performance or productivity data, including the production of unit cost information. (5) Procedures to minimize the time elapsing between the transfer of funds from the US Treasury and the disbursement by the grantee, whenever funds are advanced by the Federal Government. When advances are made by a letter-of-credit method, the grantee shall make drawdowns from the U.S. Treasury through his commercial bank as close as possible to the time of making the disbursements. Subgrantees shall institute similar procedures when funds are advanced by the grantee. (6) Procedures for determing the allowability and allocability of costs shall be in accordance with the applicable cost principles prescribed in Appendix A of this Part. (7) Accounting records which are supported by source documentation. (8) A systematic method to assure dit findings and recommendations. timely and appropriate resolution of au (b) Grantees shall require subgrantees (recipients of grants which are passed through by the grantee) to adopt all of the standards in paragraph (a) of this section. § 406.8 Financial ments. the goals of the grant. This review shall be made for each program, function, or activity of each grant as set forth in the approved grant application. (b) Grantees shall submit a performance report for each grant which briefly presents the following for each program, function, or activity involved: (1) A comparison of actual accomplishments to the goals established for the period. Where the output of grant programs can be readily quantified, such quantitative data should be related to cost data for computation of unit costs. (2) Reasons for slippage in those cases where established goals were not met. (3) Other pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs. (c) Grantees shall submit the performance reports to the Bureau with the Financial Status Reports (prescribed in Appendix B of this Part) in the frequency established by Appendix B. The Bureau shall prescribe the frequency with which the performance reports will be submitted with the Request for Advance or Reimbursement (prescribed in Appendix B) when that form is used in lieu of the Financial Status Report. In no case shall the performance reports be required more frequently than quarterly or less frequently than annually. (d) Between the required performance reporting dates, events may occur which have significant impact upon the project or program. In such cases, the grantee shall inform the Bureau as soon as the following types of conditions become known: (1) Problems, delays, or adverse conditions which will materially affect the ability to attain program objectives, prevent the meeting of time schedules and goals, or preclude the attainment of project work units by established time periods. This disclosure shall be accomplished by a statement of the action taken, or contemplated, and any Bureau assistance needed to resolve the situation. (2) Favorable developments or events which enable meeting time schedules and goals sooner than anticipated or producing more work units than originally projected. (e) If any performance review conducted by the grantee discloses the need for change in the budget estimates in accordance with the criteria established in § 406.14, the grantee shall submit a request for budget revision. (f) The Bureau shall make site visits reporting require- as frequently as practicable to: (1) Review program accomplishments and management control systems. (2) Provide such technical assistance as may be required, or requested. § 406.10 Grant payment requirements. (a) Except for construction grants for which the letter-of-credit method is optional, the letter-of-credit funding method shall be used by the Bureau where all of the following conditions exist: (1) When there is or will be a continuing relationship between a grantee and the Bureau for at least a 12-month FEDERAL REGISTER, VOL. 40, NO. 172-THURSDAY, SEPTEMBER 4, 1975 period and the total amount of advances to be received within that period from the Bureau is $250,000, or more, as prescribed by Treasury Circular No. 1075. (2) When the grantee has established or demonstrated to the Bureau the willingness and ability to establish procedures that will minimize the time elapsing between the transfer of funds and their disbursement by the grantee. (3) When the grantee's financial management system meets the standards for fund control and accountability prescribed in § 406.7. (b) The method of advancing funds by Treasury check shall be used, in accordance with the provisions of Treasury Circular No. 1075, when the grantee meets all of the requirements specified in paragraphs (a) (2) and (3) of this section. (c) The reimbursement by Treasury check method shall be the preferred method when the grantee does not meet the requirements specified in either paragraph (a) (2) or (a) (3), or both. This method may also be used when the major portion of the program is accomplished through private market financing or Federal loans, and when the Bureau grant assistance constitutes a minor portion of the program. (d) Unless otherwise required by law, the Bureau shall not withhold payments for proper charges made by grantees at any time during the grant period unless: (1) A grantee has failed to comply with the program objectives, grant award conditions, or Bureau reporting requirements; or (2) The grantee is indebted to the United States and collection of the indebtedness will not impair accomplishment of the objectives of any grant program sponsored by the United States. Under such conditions, the Bureau may, upon reasonable notice, inform grantee that payments will not be made for obligations incurred after a specified date until the conditions are corrected or the indebtedness to the Federal government is liquidated. the (e) Appendix B of this Part provides the procedures for requesting advances or reimbursements. § 406.11 ards. Property management stand PROPOSED RULES least two sides other trust or restricted (2) Fee title to the acquired real prop- (1) Other grants from the Bureau. (111) Tribal purposes consistent with (iv) Tribal official activities. (3) In those instances where the Indian tribe requests, title may be acquired by the United States. Use of these acquired real property interests will be subject to the authorized purposes and in accordance with the provisions of the original grant. Upon a determination that the real property is no longer needed for the authorized purposes, disposition may be made by declaring it excess under provisions of the Act of January 2, 1975 (88 Stat. 1954) and title transferred to the Secretary to be held by the United States in trust for the tribe. Where real property does not meet the requirements under the Act of January 2, 1975 (88 Stat. 1954), the tribe may elect to acquire title under applicable enabling statutory authorities, or in the absence of statutory authority. request withholding disposition in ald of legislation, or authorize disposal under the General Services Administration procedures. (c) The provisions of paragraph (b) (2) and (3) of this section shall also apply when real property is acquired in whole or in part by a Bureau grant other than that provided under Part 402 of this Chapter. However, when such property is acquired by a grantee other than an Indian tribe, or a tribal governing body, fee simple title to the property shall vest in the grantee upon acquisition. In the absence of applicable statutory provisions governing the use or disposition of such property, it shall be subject to the following requirements, in addition to any other requirements imposed by the terms and conditions of the grant: (1) The grantee shall use the real property for the authorized purpose of the original grant as long as needed. 41013 (2) The grantee shall obtain approval by the Bureau for the use of the real property in other projects when the grantee determines that the property is no longer needed for the original grant purposes. Use in other projects shall be limited to those under other Federal grant programs, or programs that have purposes consistent with those authorized for support by the grantor. (3) When the real property is no longer needed as provided in paragraphs (c) (1) and (2) of this section, the grantee shall return all real property furnished or purchased wholly with Bureau grant funds to the control of the Bureau. In the case of property purchased in part with Bureau grant funds, the grantee may be permitted to take title to the Federal interest therein upon compensating the Federal Government for its fair share of the property. The Federal share of the property shall be the amount computed by applying the percentage of the Federal participation in the total cost of the grant program for which the property was acquired to the current fair market value of the property. (d) Standards and procedures governing ownership, use, and disposition of nonexpendable personal property furnished by the Bureau or acquired with Bureau funds are set forth below: (1) Nonexpendable personal property acquired with Bureau funds. When nonexpendable personal property is acquired by a grantee wholly or in part with Bureau funds, title will not be taken by the Bureau except as provided in paragraph (d) (1) (iv) of this section but shall be vested in the grantee subject to the following restrictions on use and disposition of the property: (1) The grantee shall retain the property acquired with Bureau funds in the grant program as long as there is a need for the property to accomplish the purpose of the grant program whether or not the program continues to be supported by Bureau funds. When there is no longer a need for the property to accomplish the purpose of the grant program, the grantee shall use the property in connection with the other Federal grants it has received in the following order of priority: (A) Other grants from the Bureau needing the property. (B) Grants of other Federal agencies needing the property. (1) When the grantee no longer has need for the property in any of its Federal grant programs, or programs that have purposes consistent with those authorized for support by the grantor, the. property may be used for its own official activities in accordance with the following standards: (A) Nonexpendable property with an acquisition cost of less than $500 and used four years or more. The grantee may use the property for its own official activities without reimbursement to the Federal Government or sell the property and retain the proceeds. (B) All other nonexpendable property. The grantee may retain the property for FEDERAL REGISTER, VOL. 40, NO. 172-THURSDAY, SEPTEMBER 4, 1975 41014 its own use if a fair compensation is made to the Bureau for the latter's share of the property. The amount of compensation shall be computed by applying the percentage of Bureau participation in the grant program to the current fair market value of the property. (iii) If the grantee has no need for the property, disposition of the property shall be made as follows: (A) Nonexpendable property with an acquisition cost of $1,000 or less. Except for that property which meets the criteria of paragraph (d) (1) (1) (A) of this section, the grantee shall sell the property and reimburse the Bureau an amount which is computed in accordance with paragraph (d) (1) (iii) of this section. (B) Nonexpendable property with an acquisition cost of over $1,000. The grantee shall request disposition instructions from the Bureau. The Bureau shall determine whether the property can be used to meet the Bureau's requirement. If no requirement exists within the Bureau, the availability of the property shall be reported to the General Services Administration (GSA) by the Bureau to determine whether a requirement for the property exists in other Federal agencies. The Bureau shall issue instructions to the grantee within 120 days and the following procedures shall govern: (1) If the grantee is instructed to ship the property elsewhere, the grantee shall be reimbursed by the benefiting Federal agency with an amount which is computed by applying the percentage of the grantee's participation in the grant program to the current fair market value of the property, plus any shipping or interim storage costs incurred. (2) If the grantee is instructed to otherwise dispose of the property. he shall be reimbursed by the Bureau of such costs incurred in its disposition. (3) If disposition instructions are not issued within 120 days after reporting, the grantee shall sell the property and reimburse the Bureau an amount which is computed by applying the percentage of Bureau participation in the grant program to the sales proceeds. Further, the grantee shall be permitted to retain $100 or 10 percent of the proceeds, whichever is greater, for the grantee's selling and handling expenses. (iv) Where the Bureau determines that property with an acquisition cost of. $1,000 or more and financed solely with Bureau funds in unique, different, or costly to replace. It may reserve title to such property, subject to the following provisions: (A) The property shall be appropriate ly identified in the grant agreement or otherwise made known to the grantee. (B) The Bureau shall issue disposition instructions within 120 days after the completion of the need for the property under the grant for which it was acquired. If the Bureau fails to issue disposition instructions within 120 days, the grantee shall apply the standards of paragraphs (d) (1) (1), (d) (1) (i) (B), and (d) (1) (1) (B) of this section. (2) Federally-owned nonexpendable personal property. Unless statutory au PROPOSED RULES thority to transfer title has been granted (d) The grantee's property manage- (1) Property records shall be main- shall be taken and the results reconciled (3) A control system shall be in effect (4) Adequate maintenance procedures shall be implemented to keep the property in good condition. (5) Proper sales procedures shall be established for unneeded property which would provide for competition to the extent practicable and result in the highest possible return. (e) When the total inventory value of any unused expendable personal property exceeds $500 at the expiration of need for any grant purposes, the grantee may retain the property or sell the property as long as he compensates the Bureau for its share in the cost. The amount of compensation shall be computed in accordance with paragraph (d) (1) (11) (B) of this paragraph. (1) Specific standards for control of able items, patent rights, processes, or ent issued on it shall be allocated and administered in order to protect the public interest consistent with "Government Patent Policy" (President's memorandum for heads of executive departments and agencies), dated August 23, 1971, and Statement of Government Patent Policy as printed in 36 FR 16889. (2) Where the grant results in a book or other copyrightable material, the author or grantee is free to copyright the work, but the Bureau reserves a royaltyfree nonexclusive and irrevocable license and to authorize others to use the work to reproduce, publish, or otherwise use, for Government purposes. (g) The use of Bureau-owned facilities under the jurisdiction of the Commissioner by a grantee for purposes of carrying out a grant may be authorized when the facilities are not needed for Bureau purposes. § 406.12 Procurement standards. (a) The standards contained in this section do not relieve the grantee of the contractual responsibilities arising under sible authority, without recourse to the its contracts. The grantee is the responBureau regarding the settlement and satisfaction of all contractual and administrative issues arising out of procurements entered into, in support of a disputes, claims, protests of award, grant. This includes but is not limited to: source evaluation or other matters of a contractual nature. Matters concerning violation of law are to be referred to the tribal. Federal or other authority which has proper jurisdiction. curement regulations provided that pro(b) Grantees may use their own procurements made with Bureau grant funds adhere to the standards set forth as follows: (1) The grantee shall maintain a code or standards of conduct which shall govern the performance of its officers, employees, or agents in contracting with and expending Bureau grant funds. Grantee's officers, employees or agents, shall neither solicit nor accept gratultles, favors, or anything of monetary value from contractors or potential contractors. To the extent permissible by law, rules or regulations, such standards shall provide for penalties, sanctions, or other disciplinary actions to be applied for violations of such standards by either the grantee officers, employees, or agents, or by contractors or their agents. (2) All procurement transactions regardless of whether negotiated or advertised and without regard to dollar value shall be conducted in a manner so as to provide maximum open and free competition. The grantee should be alert to organizational conflicts of interest or non-competitive practices among contractors which may restrict or eliminate competition or otherwise restrain trade. However, this provision will apply only after the Indian preference requirements prescribed in 406.13 have been met. (3) The grantee shall establish procurement procedures which provide for, as a minimum, the following procedural requirements: FEDERAL REGISTER, VOL. 40, NO. 172-THURSDAY, SEPTEMBER 4, 1975 (1) Proposed procurement actions shall be reviewed by grantee officials to avold purchasing unnecessary or duplicative Items. Where appropriate, an analysis shall be made of lease and purchase alternatives to determine which would be the most economical, practical procurement. (1) Invitations for bids or requests for proposals shall be based upon a clear and accurate description of the technical requirements for the material, product, or service to be procured. In competitive procurements, such description shall not contain features which unduly restrict competition. "Brand name or equal" description may be used as a means to define the performance or other salient requirements of a procurement. When so used, the specific features of the named brand which must be met by offerors should be clearly specified. (111) Positive efforts shall be made by the grantees to use small business and minority-owned business sources of supplies and services. Such efforts should allow these sources the maximum feasible opportunity to compete for contracts to be performed using Bureau grant funds. However, this provision will apply only after the Indian preference requirements prescribed in § 406.13 have been met. (iv) The type of procuring instruments used (1.e., fixed price contracts, cost reimbursable contracts, etc.) shall be appropriate for the particular procurement and for promoting the best interest of the grant program involved. The "cost-plus-a-percentage-of-cost" method of contracting shall not be used. (v) Formal advertising, with adequate purchase description, sealed bids, and public openings shall be the required method of procurement unless negotiation pursuant to paragraph (b) (3) (vi) of this section is necessary to accomplish sound procurement. However, procurement of $10,000 or less need not be so advertised. Where such advertised bids are obtained the awards shall be made to the responsible bidder whose bid is responsive to the invitation and is most advantageous to the grantee, price and other factors considered. (Factors such as discounts, transportation costs, taxes may be considered in determining the lowest bid.) Invitations for bids shall clearly set forth all requirements which the bidder must fulfill in order for his bid to be evaluated by the grantee. Any or all bids may be rejected when it is in the grantee's interest to do so. (vi) Procurements may be negotiated if it is impracticable and unfeasible to use formal advertising. Generally, procurements may be negotiated by the grantee if: (A) The public exigency will not permit the delay incident to advertising: (B) The material or service to be procurred is available from only one person or firm; (all contemplated sole source procurements where the aggregate expenditure is expected to exceed $5,000 shall be referred to the Bureau for prior approval). (C) The total amount involved does not exceed $10,000; PROPOSED RULES (D) The contract is for personal or professional services, or for any service to be rendered by a university, college, or other educational institutions; (E) No acceptable bids have been received after formal advertising; (F) The purchases are for highly perishable materials or medical supplies; for material or services where the prices are established by law: for technical items or equipment requiring standardization and interchangeability of parts with existing equipment; for experimental, developmental or research work; for supplies purchased for authorized resale; and for technical or specialized supplies requiring substantial initial investment for manufacture; (G) Otherwise authorized by law, rules or regulations. Notwithstanding the existence of circumstances justifying negotiation, competition shall be obtained to the maximum extent practicable. (vii) Contracts shall be made only with responsible contractors who posseSS the potential ability to perform successfully under the terms and conditions of a proposed procurement. Consideration shall be given to such matters as contractor integrity, record of past performance, financial and technical resources, or accessibility to other necessary resources. (vii) Procurement records or files for purchases in amounts over $10,000 shall provide at least the following pertinent information: Justification for the use of negotiation in lieu of advertising, contractor selection, and the basis for the cost or price negotiation. (1x) A system for contract administration shall be maintained to assure contractor conformance with terms, conditions, and specifications of the contract or order, and to assure adequate and timely followup of all purchases. (c) In addition to provisions to define a sound and complete agreement, the grantee shall include the following provisions in all contracts and subgrants: (1) Contracts shall contalp such contractual provisions or conditions which will also for administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate. (2) All contracts, amounts for which are over $10,000 shall contain suitable provisions for termination by the grantee including the manner by which it will be effected and the basis for settlement. In addition, such contracts shall describe conditions where the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor. (3) In all contracts for construction or facility improvement awarded over $100,000, grantees shall observe the bonding requirements provided in § 406.4. (4) All construction contracts awarded by recipients and their contractors or subgrantees having a value of more than $10,000, shall contain a provision requiring compliance with Executive Order No. 41015 11246, entitled "Equal Employment Opportunity," as amended by Labor Regulations (41 CFR Part 60). However, this Equal Employment Opportunity provision will apply only after the Indian preference requirements prescribed in 406.13 have been met. (5) All contracts and subgrants for construction or repair shall include a provision for compliance with the Copeland "Anti-Kick Back" Act (18 U.S.C. 874) as supplemented in Department of Labor regulations (29 CFR Part 3). This Act provides that each contractor or subgrantee shall be prohibited from inducing, by any means, any person employed In the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The grantee shall report all suspected or reported violations to the Bureau. (6) When required by the Federal grant program legislation, all construction contracts awarded by grantees and subgrantees over $2,000 shall include a provision for compliance with the DavisBacon Act (40 U.S.C. 276a to a-7) and as supplemented by Department of Labor regulations (29 CFR Part 5). Under this Act, contractors shall be required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage, determination made by the Secretary of Labor. In addition, contractors shall be required to pay wages not less often than once a week. The grantee shall place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation and the award of a contract shall be conditioned upon the acceptance of the wage determination. The grantee shall report all suspected or reported violations to the Bureau. (7) Where applicable, all contracts awarded by grantees and subgrantees over $2,000 for construction contracts and over $2,500 for other contracts which involve the employment of mechanics or laborers shall include a provision for compliance with sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327330) as supplemented by Department of Labor regulations 129 CFR Part 5). Under Section 103 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard work day of 8 hours and a standard work week of 40 hours. Work in excess of the standard workday or workweek is permissible if the worker is compensated at a rate of not less than 11⁄2 times the basic rate of pay for all hours worked over 8 hours in any calendar day or 40 hours in the work week. Section 107 of the Act applies to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health and safety as determined under construction, safety, and health standards promulgated by the Secretary of Labor. These requirements do not apply to the purchases of supplies or materials or articles FEDERAL REGISTER, VOL. 40, NO. 172-THURSDAY, SEPTEMBER 4, 1975 |