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curing party, price and other factors considered

(2) Factors such as discounts, transportation costs, and taxes may be considered in determining the lowest bid. Any and all bids/offers may be rejected when it is in the procuring party's interest to do so and, in the case of governmental procuring parties, such rejections are in accordance with government's applicable law, rules, or regulations.

$ 1050.160-8 Standard-procedures.

The procuring party shall establish written procurement procedures which provide for, at a minimum, the following:

(a) Proposed procurement actions shall follow a procedure to assure that unnecessary or duplicative items are not purchased. Where appropriate, an analysis shall be made of lease and purchase alternatives to determine which would be the most economical, practical procurement. To foster greater economy and efficiency public grantees are encouraged to enter into State and local intergovernmental agreements for procurement or use of common goods and services.

(b) Solicitations for goods and serv. ices shall be based upon a clear and accurate description of the technical requirements for the material, product or service to be procured. Such description shall not, in competitive procurements, contain features which unduly restrict competition. When it is impractical or uneconomical to make a clear and accurate description of the technical requirements, a “brand name or equal” description may be used as a means to define the performance or other salient requirements of a procurement, and when so used the specific features of the named brand which must be met by bidders/offerors shall be clearly specified.

(c) The following affirmative steps shall be taken to assure that small and minority businesses are utilized when possible as sources of supplies, equip. ment, construction, and services. These steps include:

(1) Including qualified small and minority businesses on solicitation lists.

(2) Assuring that small and minority businesses are solicited whenever they are potential sources.

(3) When economically feasible, dividing total requirements into smaller tasks or quantities so as to permit maximum small and minority business participation.

(4) Where the requirement permits, establishing delivery schedules which will encourage participation by small and minority business.

(5) Using the services and assistance of the Small Business Administration, the Office of Minority Business Enterprise of the Department of Commerce and the Community Services Administration as required.

(6) If any subcontracts are to be let, requiring the prime contractor to take the affirmative steps listed above.

(d) The procuring party shall take similar appropriate affirmative action in support of women's business enterprises.

(e) The procuring party is encouraged to procure goods and ser from labor surplus areas.

(f) The type of procuring instruments used, e.g., fixed-price contracts, cost reimbursable contracts, purchase orders, incentive contracts, shall be determined by the procuring party but must be appropriate for the particular procurement and for promoting the best interest of the grant project or program involved. The “cost-plus-apercentage-of-cost” and percentage of construction cost methods of contracting shall not be used.

(g) 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.

(h) Any proposed sole source contract, or proposed contract where only one bid or proposal is received by a nongovernmental procuring party, shall be subject to prior approval by the appropriate CSA administering office if the aggregate expenditure for all items procured from the contractor will exceed $5,000 in a 12-month

period. In addition, for any procure- in writing with a copy to the Office of ment contract in which payment will Federal Procurement policy. be made by the procuring party in (j) The procuring party should make whole or in part with Title II grant some form of price or cost analysis in funds, if the proposed contractor does connection with every negotiated prothe major part of its business with the curement action. Price analysis may be procuring party and/or if the pro- accomplished in various ways, includposed contractor is a firm established ing the comparison of price quotations or controlled by a member or members submitted, market prices and similar of the procuring party's staff or board, indices together with discounts. Cost CSA approval will be based on, but not analysis is the review and evaluation be limited to, the following:

of each element of cost proposed by (1) Evidence that the proposed con- the offeror to determine reasonabletractor is a non-profit corporation ness, allocability and allowability. whose income and assets would. in Costs or prices based on estimated event of failure of the procuring costs for contracts shall be allowed party, continue to be used to benefit

only to the extent that cost incurred low-income individuals;

or cost estimates included in negotiat(2) Evidence that the hiring and pro. ed prices are consistent with Federal curement policies of the proposed con

cost principles. tractor include the same prohibitions

(k) Grantees shall maintain records against nepotism and conflict of inter

sufficient to detail the significant hisest as those found in 160-6 of this sub

tory of a procurement. These records part;

shall include, but are not necessarily (3) Inclusion in the contract of a

limited to, information pertinent to provision that the management, finan

the following: rationale for the

method of procurement, selection of cial, and procurement records of the

contract type, contractor selection or proposed contractor must be made available for inspection and examina

rejection, and the basis for the cost or

price. tion to those parties and on the same

(1) A system for contract administrabasis as required for private nonprofit

tion shall be maintained to ensure congrantees in Subpart D of this part;

tractor conformance with terms, con(4) Submission by the proposed con

ditions, and specifications of the contractor of an audited revenue and ex

tract, and to ensure adequate and penditures statement and balance

timely follow-up of all purchases. sheet dated within the last twelve months; and

[45 FR 28137, Aug. 28, 1980, as amended at (5) Submission of supporting docu

45 FR 59153, Sept. 8, 1980) mentation that the prices being charged are competitive with prices $ 1050.160-9 Method of procurement for being charged for similar items and/or State and local governments. services by other businesses.

Procurement under grants shall be (i) Any proposed sole source con made by one of the following methods: tract, or proposed contract where only Small purchase procedures; competione bid or proposal is received by a tive sealed bids (formal advertising); governmental procuring party shall be competitive negotiation; and/or nonsubject to prior approval by the CSA competitive negotiation. administering office if the procure (a) Small purchase procedures are ment is expected to exceed $10,000. those relatively simple and informal For governmental entities prior ap- procurement methods that are sound proval also is required if the procure and appropriate for a procurement of ment is expected to exceed $10,000 and services, supplies or other property, specifies a brand name product or the costing in the aggregate not more procuring party's procedures or oper- than $10,000. Grantees shall comply ation fails to comply with one or more with State or local small purchase significant aspects of this rule. If the dollar limits under $10,000. If small latter situation exists the CSA admin- purchase procedures are used for a istering office will notify the grantee procurement under a grant, price or

rate quotations shall be obtained from an adequate number of qualified sources.

(b) In competitive sealed bids (formal advertising), sealed bids are publicly solicited and a firm-fixedprice contract (lump sum or unit price) is awarded to the responsible bidder whose bid, conforming with all the material terms and conditions of the invitation for bids, is lowest in price.

(1) In order for formal advertising to be feasible, appropriate conditions must be present, including, as a minimum, the following:

(i) A complete, adequate and realistic specification or purchase description is available.

(ii) Two or more responsible suppliers are willing and able to compete effectively for the grantee's business.

(iii) The procurement lends itself to a firm-fixed-price contract, and selection of the successful bidder can appropriately be made principally on the basis of price.

(2) If formal advertising is used for a procurement under a grant, the following requirements shall apply.

(i) A sufficient time prior to the date set for opening of bids, bids shall be solicited from an adequate number of known suppliers. In addition, the invitation shall be publicly advertised.

(ii) The invitation for bids, including specifications and pertinent attachments, shall clearly define items or services needed in order for the bidders to properly respond to the invitation.

(iii) All bids shall be opened publicly at the time and place stated in the invitation for bids.

(iv) A firm-fixed-price contract award shall be made by written notice to that responsible bidder whose bid, conforming to the invitation for bids, is lowest. Where specified in the bid. ding documents, factors such as discounts, transportation costs and life cycle costs shall be considered in determining which bid is lowest. Pay. ment discounts may only be used to determine low bid when prior experience of the grantee indicates that such discounts are generally taken.

(v) Any or all bids may be rejected when there are sound documented

business reasons in the best interest of the program.

(c) In competitive negotiation, proposals are requested from a number of sources and the request for proposal is publicized, negotiations are normally conducted with more than one of the sources submitting offers, and either a fixed-price or cost-reimbursable type contract is awarded, as appropriate. Competitive negotiation may be used if conditions are not appropriate for the use of formal advertising. If competitive negotiation is used for a procurement under a grant, the following requirements shall apply:

(1) Proposal shall be solicited from an adequate number of qualified sources to permit reasonable competition consistent with the nature and requirements of the procurement. The request for proposals shall be publicized and reasonable requests by other sources to compete shall be honored to the maximum extent practicable.

(2) The request for proposal shall identify all significant evaluation factors, including price or cost where required and their relative importance.

(3) The grantee shall provide mechanisms for technical evaluation of the proposals received, determinations of responsible offerors for the purpose of written or oral discussions, and selection for contract award.

(4) Award may be made to the responsible offeror whose proposal will be most advantageous to the procuring party, price and other factors considered. Unsuccessful offerors should be notified promptly.

(5) Grantees may utilized competitive negotiation procedures for procurement of Architectural/Engineering professional services, whereby competitor' qualifications are evaluated and the most qualified competitor is selected, subject to negotiation of fair and resonable compensation.

(d) Noncompetitive negotiation is procurement through solicitation of a proposal from only one source, or after solicitation of a number of sources, competition is determined in. adequate. Noncompetitive negotiation may be used when the award of a contract is feasible under small purchase, competitive bidding (formal advertising) or competitive negotiation proce

dures. Circumstances under which a (d) Executive Order 11246. All concontract may be awarded by noncom tracts in excess of $10,000 shall conpetitive negotiation are limited to the tain a provision requiring compliance following:

with Executive Order 11246, entitled (1) The item is available only from a “Equal Employment Opportunity," as single source;

amended by Executive Order 11375, (2) Public exigency or emergency and as supplemented in Department when the urgency for the requirement of Labor Regulations (41 CFR Part will not permit a delay incident to 60). competitive solicitation;

(e) Davis-Bacon Act. All construc(3) The Federal grantor agency au- tion contracts in excess of $2,000 shall thorizes noncompetitive negotiation; include a provision for compliance or

with the Davis-Bacon Act (40 U.S.C. (4) After solicitation of a number of 276a to a-7) as supplemented by Desources, competition is determined in partment of Labor Regulations (29 adequate.

CFR Part 5). Under this Act contrac(e) Additional innovative procure tors shall be required to pay wages to ment methods may be used by grant laborers and mechanics at a rate not ees with the approval of the appropri less than the minimum wages specified ate CSA administering office.

in a wage determination made by the

Secretary of Labor. In addition, con8 1050.160–10 Standard-contract provi

tractors shall be required to pay wages sions.

not less often than once a week. The The requirements relate to provi grantee shall place a copy of the cursions that must be included in con rent prevailing wage determination tracts for procurements that are sub issued by the Department of Labor in ject to this regulation. The term “con each solicitation and the award of a tracts" in this section shall be con contract shall be conditioned upon acstrued as including subcontracts.

ceptance of the wage determination. (a) Administrative Remedies for Vio All suspected or reported violations lations. Contracts in excess of $10,000 shall be reported to CSA by the grantshall contain contractual provisions or ee. conditions that will allow for adminis- (f) Copeland Act. All contracts or trative, contractual or legal remedies subcontracts in excess of $2,000 for in instances where contractors violate construction or repair shall include a or breach contract terms, and provide provision for compliance with the for such remedial actions as appropri Copeland "Anti-Kick Back” Act (18 ate.

U.S.C. 874) as supplemented in De(b) Termination Provisions. Con partment of Labor regulations (29 tracts in excess of $10,000 shall con CFR Part 3). This Act provides that tain suitable provisions for termina each contractor or subgrantee shall be tion by the procuring party, including prohibited from inducing, by any the manner by which termination will means, any person employed in the be effected and the basis for settle construction, completion, or repair of ment. In addition, such contracts shall public work, to give up any part of the describe conditions under which the compensation to which he is otherwise contract may be terminated for de entitled. All suspected or reported viofault as well as conditions where the lations shall be reported to CSA by contract may be terminated because of the grantee. circumstances beyond the control of (g) Contract Work Hours and Safety the contractor.

Standards Act. All contracts awarded (c) Bonding Requirements. In all by grantees and subgrantees in excess contracts for construction or facility of $2,000. for construction contracts improvement awarded by a nongovern and in excess of $2,500 for other conmental procuring part (A-110 only) for tracts which involve the employment more than $100,000, the recipient shall of mechanics or laborers shall include observe the bonding requirements pro- a provision for compliance with secvided for in 45 CFR Part 1050, Sub- tions 103 and 107 of the Contract part C.

Work Hours and Safety Standards Act

295

(40 U.S.C. 327-330) as supplemented (j) Clean Air Act. Contracts and subby Department of Labor regulations contracts of amounts in excess of (29 CFR Part 5). Under section 103 of $100,000 shall contain a provision that the Act, each contractor shall be re- requires the procuring party to agree quired to compute the wages of every to comply with all applicable standmechanic and laborer on the basis of a ards, order or regulations, issued purstandard work day of 8 hours and a suant to the Clean Air Act of 1970 (42 standard workweek of 40 hours. Work U.S.C. 1857 et seq.) and the Federal in excess of the standard work day or Water Pollution Control Act (33 workweek is permissible provided that U.S.C. 1251 et seq.) as amended. Violathe worker is compensated at a rate of tions shall be reported to the Communot less than 13 times the basic rate of nity Services Administration and the pay for all hours worked in excess of 8 U.S. Environmental Protection Agency hours in any calendar day or 40 hours Assistant Administrator for Enforcein the workweek. Section 107 of the ment. Act is applicable to construction work (k) Energy Conservation Act. Conand provides that no laborer or me tracts shall recognize mandatory chanic shall be required to work in standards and policies relating to surroundings or under working condi energy efficiency which are contained tions which are unsanitary, hazardous, in the State energy conservation plan or dangerous to his health and safety issued in compliance with the Energy as determined under construction Policy and Conservation Act (Pub. L. safety and health standards promul 94-165). gated by the Secretary of labor. These requirements do not apply to the pur PART 1060-GENERAL CHARACTERchases of supplies or materials or arti

ISTICS OF CSA-FUNDED PROcles ordinarily available on the open

GRAMS market, or contracts for transportation or transmission of intelligence.

Subpart 1060.1—Participation of the Poor in (h) Inventions and Patents. Con

the Planning, Conduct, and Evaluation of tracts or subcontracts which may give

Community Action Programs (CSA Instruction rise to inventions or patents shall con

6005-1) tain a notice to the effect that matters regarding rights to inventions and ma Sec. terials generated under the contract or 1060.1-1 Applicability of this subpart. agreement are subject to the regula 1060.1-2 Policy. tions issued by CSA and the grantee.

be grantee 1060.1-3 Procedures. The contractor shall be advised as to the source of additional information

Subpart 1060.2-CSA Income Poverty regarding these matters.

Guidelines (CSA Instruction 6004-1K) (i) Access to Records. All negotiated 1060.2-1 Applicability. contracts (except those of $10,000 or 1060.2-2 Policy. less) awarded by a nongovernmental procuring party and all negotiated Subpart 1060.3—Limitation on Benefits to contracts (except those awarded by Those Voluntarily Poor (CSA Instruction small purchases procedures) which are 6004-2) made by a public procuring party, shall include a provision to the effect

1060.3-1 Applicability of this subpart. that the procuring party, the Commu

1060.3-2 Policy. nity Services Administration, the Comptroller General of the United

Subpart 1060.1-Participation of the States, or any of their duly authorized Poor in the Planning, Conduct, and representatives, shall have access to Evaluation of Community Action any books, documents, papers and re Programs (CSA Instruction 6005-1) cords of the contractor which are di. rectly pertinent to a specific program AUTHORITY: Secs. 211, 224, 602, 81 Stat. for the purpose of making audits, ex.

693; 42 U.S.C. 2791. aminations, excerpts and transcrip SOURCE: 33 FR 17140, Nov. 19, 1968, unless tions.

otherwise noted.

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