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Procurement Responsibility and Authority.
Responsibility of the head of the Procuring activity.
The head of the procuring activity is responsible for the conduct of an effective and efficient procurement program. Adequate controls shall be established to assure compliance with applicable laws, regulations, procedures, and the dictates of good management practices. Periodic reviews shall be conducted by qualified personnel, preferably assigned to positions other than in the particular procurement office or portion thereof being reviewed, to determine the extent of adherence to prescribed policies and regulations and good management practices, and to identify any needs for improvement, guidance and/or training.
$9-1.403 Requirements to be met before entering into contracts.
(a) No contract shall be entered into, modified, or terminated unless all required reviews, clearances, or approvals have been obtained and all applicable requirements of law, the FPR, the ERDA-PR, and other applicable regulations have been met.
(b) In addition to the requirements specified in paragraph (a), no negotiated contract shall be entered into until the determinations and findings required by Parts 1-3 and 9-3 with respect to the circumstances justifying negotiation and use of any special method of contracting have been made. Negotiations, in any form, will not begin with prospective contractors until all required determinations and findings authorizing such negotiations have been made.
$9-1.404 Selection, appointment, and termination
of appointment of contracting officers.
In selecting contracting officers, the appointing authority shall consider experience, training, education, business acumen, judgment, character, reputation, and ethics. In considering experience, training, and education, the following shall be evaluated:
(a) experience in a Government procurement office, commercial procurement, or related fields;
(b) formal education or special training in business administration, law, accounting, or related fields and completion of specialized courses in the field of Government procurement;
(c) knowledge of procurement law, FPR, ERDA-PR, other applicable laws, Executive Orders, 'and regulations affecting procurement.
(a) Except for those individuals who are designated contracting officers by position (e.g., heads of procuring activities, such as field office managers), appointment of contracting officers shall be made by the appointing official (e.g., heads of procuring activities, such as managers of field offices for persons working under their authority). Any limitations on the scope of the authority to be exercised by the contracting officer, other than those contained in this regulation, shall be entered on the face of the certificate. Certificates may be serially numbered.
(b) The office of each appointing authority shall maintain a file containing all documents (such as resumes, references, and records of training) necessary to support the appointment of each contracting officer.
The appointment of a contracting officer may be revoked at any time by the appointing authority, but no such revocation shall operate retroactively. Revocation of the appointment shall be made by letter, reading substantially as follows:
(Name, grade, and position title) FROM: (Appointing Authority) SUBJECT: Termination of Appointment As Contracting Officer,
Certificate of Appointment, Serial No. .............
1. Your appointment as Contracting Officer contained
in the subject Certificate is hereby terminated effective .....................19...............
........(Signature and Title)
To accomplish modification of a contracting officer's authority, the present appointment shall be revoked, and a new certificate issued.
$9-1.405 Ratification of unauthorized contract awards.
(a) The Government is not generally bound by agreements or contractual commitments made to prospective contractors by persons to whom procurement authority has not been delegated. Such unauthorized acts may be in violation of the Federal Property and Administrative Services Act, other Federal laws, the FPR,' the ERDA-PR and good procurement practice; e.g., certain requirements of law and regulation necessary for the proper establishment of a contractual obligation may not be met, such as certification of the availability of funds, determinations and findings, competition of sources, determination of contractor responsibility, certification of current cost or pricing data, price/cost analysis, administrative approvals, negotiations of appropriate contract clauses, etc.
(b) Contracting officers shall not ratify contractual commitments made by other personnel of ERDA without the prior approval of the head of the procuring activity or the senior procurement official, Headquarters, and after consultation with counsel. This approval authority shall not be redelegated.
(c) Requests received by contracting officers for ratification of commitments made by personnel lacking contracting authority shall be processed as follows:
(1) The individual who made the unauthorized contractual commitment shall furnish the contracting officer all records and documents concerning the commitment and a complete, written statement of facts, including, but not limited to, a statement as to why the procurement office was not used, why the proposed contractor was selected and a list of other sources considered, description of work to be performed or products to be furnished, estimated or agreed contract price, citation of appropriation available, and a statement of whether the contractor has commenced performance.
(2) The contracting officer will review the file and forward it to the head of the procuring activity or the senior procurement official, Headquarters, with any comments or information which should be considered in evaluation of the request for ratification. The head of the procuring activity or the senior procurement official, Headquarters, will coordinate the request for ratification with counsel.
(3) If ratification is authorized by the head of the procuring activity or senior procurement official, Headquarters, the file will be returned to the contracting officer for action.
Responsibility of other Government personnel.
(a) Responsibility for the decision of what to buy and when to buy rests with program and certain staff offices and the head of the agency or designee. Responsibility for determining how to buy, the conduct of the buying process, and execution of the contract rests with the procurement activity, the contracting officer in particular.
(b) Personnel responsible for making decisions to buy should maintain a close and continuous relationship with their procurement activity to ensure that procurement personnel are made aware of contemplated procurement actions. This will be mutually beneficial in terms of better planning for procurement action and more timely, efficient, and economical procurement.
(c) Personnel not delegated contracting authority may not commit the Government, formally or informally, to any type of contractual obligation. However, program personnel who must use the contracting process to accomplish their programs, must support the contracting officer in ensuring that:
(1) requirements are clearly defined and specified;
(5) prices, estimated costs, and fees are reasonable;
(6) files are documented to substantiate the judgments, decisions, and actions taken.
99-1.451 Contracting officer's representatives.
(a) A contracting officer may designate Government personnel to act as authorized representatives for such functions as inspection, approval of shop drawings, testing, approval of samples, and other functions of a technical nature not involving a change in the scope, price, terms, or conditions of the contract or order. Such designation shall be in writing and shall contain specific instructions as to the extent to which the representative may take action for the contracting officer, but will not contain authority to sign contractual documents. The responsibilities and limitations of the contracting officer's representatives may be set forth in the contract or in a separate letter, a copy of which shall be furnished to the contractor.
(b) A person assigned to and performing primary duty within a procurement office, and who is under the supervision of a contracting officer, does not require designation as a representative to perform assigned duties. The contracting officer cannot authorize employees to sign any contract document or letter where the signature of a contracting officer is required.
$9-1.452 Standards of conduct.
The business ethics of all persons charged with administration and expenditure of Government funds must be above reproach and suspicion in every respect at all times. It is important that all persons engaged in procurement and related duties adhere to and be guided by ERDA policies and instructions on personnel conduct. Detailed rules applicable to the conduct of employees are set forth in 10 CFR Part 700.
Subpart 9-1.5 Contingent Fees
This subpart prescribes the use by ERDA of the "covenant against contingent fees" and sets forth the policies in regard to ERDA procurement.
The policies and requirements of FPR Subpart 1-1.5 shall be applied to all ERDA procurement activities.
$9-1.507 Use of Standard Form 119.
$9-1.507-1 Form prescribed.
Each Standard Form 119 completed in connection with a ERDA contract, together with other relevant information shall be reviewed by counsel prior to the initiation of appropriate action. An information copy of each such form, together with a record of action taken, shall be forwarded to the senior procurement official, Headquarters.
Debarred, Suspended, and Ineligible Bidders
This subpart implements and supplements the policies and procedures set forth in FPR Subpart 1-1.6 relating to the debarment, suspension, or ineligibility of bidders for any cause.