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Sec. 33.280 Payment to consultants. 33.285 Prohibited types of subagreements. 33.290 Cost and price considerations. 33.295 Lower tier subagreements.

SMALL PURCHASES 33.305 Small purchase procurement

method. 33.310 Small purchase procedures. 33.315 Requirements for competition.

the Government to procure the part or an adequate substitute, are furnished; and further, proprietary data need not be furnished for other items or processes which were developed at private expense and previously sold or offered for sale or commercially practiced in the case of a process, including minor modifications thereof, which are incorporated as component parts in or to be used with the product or process being developed or investigated, if in lieu thereof the grantee shall identify such other items or processes and that “proprietary data" pertaining thereto which is necessary to enable reproduction or manufacture of the item or performance of the process. For the purpose of this clause, “proprietary data" means data providing information concerning the details of a grantee's secrets of man. ufacture, such as may be contained in but not limited to his manufacturing methods or processes, treatment and chemical com. position of materials, plant layout and tool. ing, to the extent that such information is not readily disclosed by inspection or analysis of the product itself and to the extent that the grantee has protected such information from unrestricted use by others.

STO

FORMAL ADVERTISING 33.405 Formal advertising procurement

method. 33.410 Public notice and solicitation of

bids. 33.415 Time for preparing bids. 33.420 Bidding documents. 33.425 Public opening of bids. 33.430 Award to lowest, responsive, responsible bidder.

COMPETITIVE NEGOTIATION 33.505 Competitive negotiation procure

ment method. 33.510 Public notice. 33.515 Evaluation of proposals. 33.520 Negotiation and award of subagree

ment. 33.525 Optional procedure for negotiation

and award of subagreement for architectural and engineering services.

NONCOMPETITIVE NEGOTIATION 33.605 Noncompetitive negotiation pro

curement method.

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Subpart C—Clean Water Act Requirements 33.705 Applicability and scope of this sub

part. 33.710 Buy American. 33.715 Use of the same architect or engi

neer during construction.

Subpart D-Requirements for Institutions of

Higher Education and Other Nonprofit Organizations

Subpart B-Procurement Requirements 33.205 Applicability and scope of this sub

part. 33.210 Recipient's procurement responsi.

bilities. 33.215 EPA responsibility. 33.220 Limitation on subagreement award. 33.225 Violations. 33.230 Competition. 33.235 Profits. 33.240 Small, minority, women's, and labor

surplus area businesses. 33.245 Privity of subagreement. 33.250 Documentation. 33.255 Specifications. 33.260 Intergovernmental agreements. 33.265 Bonding and insurance. 33.270 Code of Conduct. 33.275 Federal cost principles.

33.805 Applicability and scope of this sub

part. 33.810 Nonapplicable subagreement

clauses. 33.815 Nonapplicable procurement provi

sions. 33.820 Additional procurement require

ments.

part.

Subpart E-Requirements for Recipients of Re- cipient's self-certification request

medial Action Cooperative Agreements under $ 33.110 of this part is accepted Under the Comprehensive Environmental Re- by the award official. sponse, Compensation, and liability Act of (b) This Part: 1980

(1) Describes EPA's procurement Sec.

system evaluation process. 33.905 Applicability and scope of this sub

(2) Identifies the minimum requirepart.

ments for the procurement of sup33.910 Preference for formal advertising. plies, services, and construction under 33.915 Award official approval.

EPA assistance agreements.

(3) Identifies an additional specificaSubpart F-Subagreement Provisions

tion requirement for procurement 33.1005 Applicability and scope of this sub

under assistance agreements for the

construction of treatment works 33.1010 Requirements for subagreement awarded under 40 CFR Part 35, Subclauses.

part E and I. 33.1015 Subagreement provisions clause.

(4) Identifies the procurement 33.1018 Equal employment opportunity

standards that institutions of higher clause. 33.1019 Anti-kickback clause.

education and other nonprofit organi33.1020 Minimum wage clause.

zations must follow. 33.1021 Work hours and safety standards (5) Identifies the provisions that reclause.

cipients of EPA assistance agreements 33.1022 Patents, data, and copyrights must include in their subagreements. clause.

(6) Describes the procedures that 33.1023 Violating facilities clause. 33.1024 Energy efficiency clause.

EPA will use to handle appeals con33.1030 Model subagreement clauses.

cerning the award of a subagreement

by the recipient of an EPA assistance Subpart G-Protests

agreement.

(c) This Part does not apply to work 33.1105 Applicability and scope of this sub

beyond the scope of the project for part. 33.1110 Limitations on protest appeals.

which an assistance agreement is 33.1115 General requirements.

awarded (i.e., ineligible work). 33.1120 Filing requirements for protest ap

(d) This Part does not apply to expeals.

penses for services for which the re33.1125 Appeal documents.

cipient will receive an allowance or a 33.1130 Deferral of procurement action.

potential recipient will receive an ad33.1135 Award official's review.

vance of an allowance under 40 CFR APPENDIX A-PROCEDURAL REQUIREMENTS

Part 35, Subpart I. FOR RECIPIENTS WHO DO NOT CERTIFY

(e) This Part supplements the reTHEIR PROCUREMENT SYSTEM, OR FOR RE quirements in (1) 40 CFR Part 30 CIPIENTS WHO HAVE THEIR PROCUREMENT "General Assistance Regulations," and CERTIFICATION REVOKED BY EPA

(2) 40 CFR Part 32, “Debarments and AUTHORITY: 7 U.S.C. 135 et seq.; 15 U.S.C.

Suspensions under EPA Assistance 2601 et seq.; 33 U.S.C. 1251 et seq.; 42 U.S.C. Programs." 241, 242b, 243, 246, 300-1, 3003-2, 300)-3, (f) The following types of recipients 1857 et seq., 6901 et seq., and 42 U.S.C. 9601 must comply with the specified subet seq.

parts in this part: SOURCE: 47 FR 20476, May 12, 1982, unless (1) Recipients of assistance agreeotherwise noted.

ments for the construction of treat

ment works awarded under 40 CFR 8 33.001 Applicability and scope of this

Part 35, Subpart E and I must follow part.

the requirements in all of the subparts (a) This Part applies to all assistance except Subpart D. agreements awarded after the effec. (2) All other State and local governtive date of this Part. For assistance ment recipients must follow the reagreements awarded before the effec- quirements in all subparts in this part tive date, this Part will apply only to except Subparts Cand D. those procurement actions conducted (3) Institutions of higher education, by the recipient after the date the re- hospitals, and other nonprofit organizations must follow the requirements cost to determine reasonableness, alloin all Subparts of this part except as cability, and allowability. stated in Subpart D.

Minority Business. (Reserved) (4) Recipients of cooperative agree- Price analysis. The process of evaluments under the Comprehensive Re ating a prospective price without sponse, Compensation, and Liability regard to the contractor's separate Act of 1980, must follow the require cost elements and proposed profit. ments in all subparts except Subparts Price analysis determines the reasonCand D.

ableness of the proposed subagree(g) In the construction of treatment ment price based on adequate price works program under the Clean Water competition, previous experience with Act (33 U.S.C. 1251 et seq.), it is EPA's similar work, established catalog or policy to delegate determinations on market price, law, or regulation. individual projects to State agencies to Profit. The net proceeds obtained by the maximum extent possible (see 40 deducting all allowable costs (direct CFR Part 35, Subpart F). This part and indirect) from the price. (Because uses the term award official. To the this defintion of profit is based on extent that the award official for a Federal procurement principles, it treatment works assistance agreement may vary from many firms' definition delegates responsibility for determin of profit, and may correspond to those ing compliance with the requirements firms' definition of "fee.") of this part (except for Subpart G Services. A contractor's labor, time, "Protests") to a State agency under a

or efforts which do not involve the dedelegation agreement (40 CFR

livery of a specific end item, other 35.1130), the term award official may

than documents, e.g., reports, design be read State agency.

drawings, specifications. This term

does not include employment agree8 33.005 Definitions.

ments or collective bargaining agree(a) Words and terms not defined ments. below shall have the meaning given to Small business. A business as defined them in 40 CFR Part 30 and 40 CFR in section 3 of the Small Business Act, Part 35.

as amended (15 U.S.C. 632). (b) As used in this part, the follow Subagreement. A written agreement ing words and terms mean:

between an EPA recipient and another Architectural or engineering (A/E) party (other than another public services. Consultation, investigations, agency) and any lower tier agreement and reports, and services for design for services, supplies, equipment, or type projects within the scope of the construction necessary to complete practice of architecture or profession the project. Subagreements include al engineering as defined by the laws contracts and subcontracts for personof the State or territory in which the al and professional services, agreerecipient is located.

ments with consultants, and purchase Construction. Erection, building, ac

orders. quisition, alteration, remodeling, im Women's Business. [Reserved] provement, extension, modification, replacement, or correction of build

Subpart A-Procurement System ings, structures or other property.

Evaluation Construction also includes remedial actions in response to a release or a threat of a release at an uncontrolled

8 33.105 Applicability and scope of this hazardous waste facility as determined subpart. by the Comprehensive Environmental (a) This subpart applies to all recipiResponse, Compensation, and Liability ents of EPA assistance agreements. Act of 1980.

(b) For procurements involving EPA Contractor. Any party to whom a re funds, recipients shall use their own cipient awards a subagreement.

procurement policies and procedures if Cost analysis. The review and evalu- those policies and procedures reflect ation of each element of subagreement applicable Federal, State, and local

laws and regulations, and at least meet the standards set forth in this part.

(c) This subpart describes when EPA will review the recipient's procurement practices.

8 33.110 Applicant and recipient certifica

tion. (a) It is the applicant's and recipient's responsibility to evaluate its own procurement system and to determine whether its system meets the requirements in this part.

(b) After evaluating its procurement system, the applicant or recipient will complete the Procurement System Certification Form For Applicants For EPA Assistance (EPA Form 5700-48). The applicant or recipient will certify that:

(1) Its system will meet the intent of all the requirements in this Part before any procurement action with EPA assistance is undertaken.

(2) Its current system does not meet the intent of the requirements of this Part, and instead, the applicant will follow the requirements of 40 CFR Part 33 and will allow EPA review and approval of proposed procurement actions that will use EPA funds. The additional requirements for EPA review and approval are contained in Appendix A to this Part.

(c) The applicant must submit the signed certification form to the award official with the assistance applica. tion.

(d) The certification will be valid for two years or the project period specified in the assistance agreement, whichever is greater, unless the recipient substantially revises its procurement system, or the award official de termines that the recipient is not following the requirements in this part,

its in this part, see & 33.115(b). If the recipient substantially revises its procurement system, the recipient must evaluate its revised system to ensure that the system still meets the requirements in this Part.

(1) To determine if the recipient is following the procurement requirement in this part; or

(2) When there is sufficient reason to do so based on the following sources of information:

(i) Information concerning the review or certification of the recipient's procurement system or actions by other Federal agencies or Congress;

(ii) Information from the recipient's cognizant audit agency;

(iii) Information from State agencies and organizations independent of the recipient's procurement activity;

(iv) Recipient responses to the procurement system certification form;

(v) Previous EPA experience with the recipient; and

(vi) Information from contractors or prospective contractors.

(b) If the award official determines that the recipient is not following the procurement requirements it certified it would follow, the award official shall revoke the recipient's certification and

(1) Apply the sanctions in 40 CFR Part 30; or

(2) Require that the recipient follow the procurement requirements in this Part, including the procedural requirements in Appendix A, for future procurement actions.

(c) The recipient may re-certify its procurement system if it shows the award official that it has corrected the procurement deficiencies noted by the award official.

Subpart B-Procurement

Requirements

833.205 Applicability and scope of this

subpart. This subpart contains: (a) The recipient's and EPA's responsibilities; and

(b) The minimum procurement standards for each recipient's procure

8 33.115 Procurement system review.

(a) EPA reserves the right to review a recipient's procurement system or procurement action:

8 33.210 Recipient's procurement responsi

bilities. (a) The recipient is responsible for the settlement and satisfactory completion in accordance with sound business judgment and good administra

ent's proposed subagreements and related procurement documents (see Appendix A), and approve the recipient's compliance with the requirements of this Part.

8 33.220 Limitation on subagreement

award. (a) The recipient shall award subagreements only to responsible contractors that possess the potential ability to perform successfully under the terms and conditions of a proposed procurement.

(b) Contractors shall meet the requirements of $ 30.340-2(a) through (d) and (g) of this subchapter.

(c) The recipient shall not make awards to contractors who have been suspended, debarred, or voluntarily excluded under 40 CFR Part 32 or to contractors on the EPA List of Violating Facilities (see 40 CFR Part 15).

tive practice of all contractual and administrative issues arising out of subagreements entered into under the assistance agreement. This includes issuance of invitations for bids or requests for proposals, selection of contractors, award of subagreements, settlement of protests, claims, disputes, and other related procurement matters.

(b) A recipient may request techni. cal and legal assistance from the award official for the administration and enforcement of any subagreement awarded under this Part. The award official's assistance does not relieve the recipient from its responsibilities identified in this part.

(c) The recipient shall maintain a subagreement administration system ensuring that contractors perform in accordance with the terms, conditions, and specifications of their subagreements.

(d) The recipient shall review its proposed procurement actions to avoid purchasing unnecessary or duplicative items.

(e) The recipient shall consider consolidating its procurement or dividing it into parts to obtain a more economical purchase.

(f) Where appropriate, the recipient shall make an analysis of lease versus purchase alternatives in its procurements actions.

(g) A recipient of a remedial action cooperative agreement awarded under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, must obtain the EPA award official's approval to use a procurement method other than the formal advertising method (see Subpart E),

(h) Innovative procurement methods or procedures may be used by recipients with the prior written approval of the award official.

8 33.225 Violations.

Violations of law are to be referred to the local, State, or Federal authority having the proper jurisdiction.

8 33.230 Competition.

(a) All procurement transactions, without regard to dollar value, shall be conducted in a manner that provides maximum open and free competition.

(b) Procurement practices shall not unduly restrict or eliminate competition. Examples of practices considered to be unduly restrictive include:

(1) Noncompetitive practices between firms;

(2) Organizational conflicts of interest;

(3) Unnecessary experience and bonding requirements;

(4) State or local laws, ordinances, regulations or procedures which give local or in-State bidders or proposers preference over other bidders or proposers in evaluating bids or proposals; and

(5) Placing unreasonable requirements on firms in order for them to

8 33.215 EPA responsibility.

(a) EPA will not substitute its judgment for that of the recipient unless the matter is primarily a Federal concern.

(b) If the recipient has not certified its procurement system under $ 33.110 and if the procurement action or change order is expected to exceed $100,000, EPA may review the recipi.

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