(a) Energy conservation and energy efficiency criteria shall be applied in the determination of requirements and source selection decisions whenever the application of such criteria would be meaningful, practical, and consistent with agency programs and operational needs. Under this policy, energy conservation and efficiency criteria shall be considered for application along with price and other relevant factors in the preparation of solicitations, the evaluation of offers, and the selection of bids and proposals for award.

(b) When procuring consumer products, executive agencies shall take into consideration energy use and efficiency labels and prescribed energy efficiency standards as they become available.

[43 FR 14315, Apr. 5, 1978]

(a) The term "consumer product" means any article (other than an automobile, as defined in section 501(1) of the Motor Vehicle Information and Cost Savings Act) of a type:

(1) Which in operation consumes, or is designed to consume, energy; and

(2) Which, to any significant extent, is distributed in commerce for personal use or consumption by individuals; without regard to whether such article of such type is in fact distributed in commerce for personal use or consumption by an individual.

(b) The term "covered product" means a consumer product of one of the following types:

(1) Refrigerators and refrigeratorfreezers.

(2) Freezers.

(3) Dishwashers.

(4) Clothes dryers.

(5) Water heaters.

(6) Room air-conditioners.

(7) Home heating equipment, not including furnaces.

(8) Television sets.

(9) Kitchen ranges and ovens.

(10) Clothes washers.

(11) Humidifiers and dehumidifiers. (12) Central air-conditioners.

(13) Furnaces.

(14) Any other type of product which the Secretary of Energy classifies as a covered product pursuant to 42 U.S.C. 6292(b).

(c) The term "energy use and efficiency label" means a label required to be provided by manufacturer of a covered product pursuant to 42 U.S.C. 6296.

(d) The term "manufacturer" means any person who manufactures a consumer product.

(e) The term "energy efficiency standard" means a performance standard:

(1) Which prescribes a minimum level of energy efficiency for a covered product, determined in accordance with test procedures prescribed under 42 U.S.C. 6293; and

(2) Which includes any other requirements which the Secretary of Energy may prescribe under 42 U.S.C. 6295(c).

(f) The term "manufacture" means to manufacture, produce, assemble, or import.

[43 FR 14315, Apr. 5, 1978]

a business that is at least 51 percent owned by a woman or women who also control and operate the business. Control in this context means exercising the power to make policy decisions. Operate in this context means being actively involved in the day-to-day management.

For the purposes of this definition, businesses which are publicly owned, joint stock associations, and business trusts are exempted. Exempted businesses may voluntarily represent that they are or are not women-owned if this information is available. (Approved by the Office of Management and Budget under OMB control number 3090-0075.)

[47 FR 41355, Sept. 20, 1982]

§ 1-1.341 Contract data reporting.

(a) This section prescribes reporting requirements to provide data concerning the award of contracts. The data provides (1) a basis for recurring and special reports to the President, the Congress, the General Accounting Office, Federal executive agencies, and the general public; (2) a means of measuring and assessing the impact of Federal contracting on the Nation's economy and the extent to which small and small disadvantaged concerns are sharing in Federal contracts; and (3) data for other policy and management control purposes.

con

(b) Each executive agency, including the Department of Defense, shall report contract actions that obligate or deobligate funds to the General Service Administration, Federal Procurement Data Center, on the forms prescribed in § 1-16.804. Instructions for completing the forms are tained in the Federal Procurement Data System Reporting Manual, Volumes I and II, as supplemented by FPDS Directives. Copies of the manuals may be obtained from Federal Procurement Data Center, 4040 North Fairfax Drive, Suite 900, Arlington, VA 22203. (Approved by the Office of Management and Budget under OMB control numbers 3090-0094 and 30900095).

[47 FR 41356, Sept. 20, 1982]

§ 1-1.342 Advance procurement planning systems and procedures.

(a) The head of each executive agency shall establish advance pro

curement planning systems and procedures that include:

(1) Procurement procedures providing lead time and cut-off dates for preparing solicitations, obtaining and evaluating bids or proposals, making preaward surveys, performing contract audits, negotiating, and making contract awards in an orderly manner;

(2) Procedures for developing, monitoring, and updating advance procurement plans; and

(3) Review procedures for last-quarter spending.

(b) A prime objective of these procedures shall be to ensure that the efforts of all personnel responsible for the procurement of property and services are coordinated as early as practicable to obtain required items of requisite quality, on time, and at the lowest price. Consistent with that objective is the responsibility to eliminate inefficiencies normally associated with hurried or unnecessary end-of-year procurements and to award contracts on a competitive basis as required by applicable laws and regulations.

[48 FR 16261, Apr. 15, 1983]

Subpart 1-1.4—Procurement Responsibility and Authority

SOURCE: Subpart 1-1.4 appears at 32 FR 16492, Dec. 1, 1967, unless otherwise noted. § 1-1.400 Scope of subpart.

This subpart deals with the procurement responsibility and authority of the head of the procuring activity and contracting officer as defined in §§ 11.206 and 1-1.207, and with the selection and designation of contracting officers.

§ 1-1.401 Responsibility of the head of the procuring activity.

The head of the procuring activity is responsible for the procurement of personal property and nonpersonal services (including construction) to the full extent that responsibility has been assigned to his activity.

§ 1-1.402 Authority of contracting offi

cers.

Contracting officers are authorized to enter into and administer contracts

for personal property and nonpersonal services (including construction) on behalf of the Government and make related findings and determinations within the limitations of the authority delegated to them. In the exercise of such authority, they are subject to the requirements in § 1-1.403 and any further requirements, consistent with the Federal Procurement Regulations, imposed by the contracting agency.

§ 1-1.403 Requirements to be met before entering into contracts.

No contract shall be entered into unless all applicable requirements of law, Executive orders and regulations have been met. The term "regulations" includes those issued by any regulatory agency whether or not incorporated or referenced in the Federal Procurement Regulations.

§ 1-1.404 Selection, designation, and termination of designation of contracting officers.

Contracting officers shall be selected, designated as such, and their designations terminated as provided in agency procedures. Such agency procedures shall conform to the provisions of this § 1-1.404.

In selecting individuals to serve as contracting officers or in positions which include authority to act as contracting officers, consideration shall be given to experience, training, education, business acumen, judgment, character, reputation, and ethics. In considering experience, training, and education, the following shall be evaluated:

(a) Experience in the field of procurement involved (e.g., supply, construction, etc.) gained in a Government or non-Government procurement office, or otherwise;

(b) Formal education or special training, including Government conducted or sponsored courses, in pertinent fields, such as business administration, law, accounting, engineering, architecture, or related fields; and

(c) Knowledge of applicable laws, Executive orders, and regulations.

§ 1-1.404-2 Designation.

Designation of individuals to act as contracting officers may be accomplished by delegation of authority to individuals or to positions. In the latter case, unless otherwise provided by the agency, any individual authorized to serve in such a position is a contracting officer. In either case, however, the instrument of designation shall include, or make specific reference to, any limitations on the scope of authority to be exercised, other than those contained in applicable laws, regulations, or directives. Appropriate records shall be maintained, whether designation be made by name or by reference to organizational title or position designation.

§ 1-1.404-3 Termination of designation.

Unless otherwise provided in the instrument designating an individual as a contracting officer (e.g. stipulation of a specified term or a specific purpose), the designation shall remain effective until the contracting officer is reassigned, his employment is terminated, or his designation is revoked. No revocation shall operate retroactively.

§ 1-1.404-4 Assignment of duties to contracting officers.

In the assignment of duties, including execution and administration of contracts, consideration shall be given to the ability, training, and experience of the contracting officer. Duties involving contracts of large dollar value and complexity shall be given only to personnel with commensurate experience, training, and ability.

§ 1-1.405 Ratification of unauthorized contract awards.

Execution of otherwise proper contracts made by individuals without contracting authority, or by contracting officers in excess of the limits of their delegated authority, may be later ratified. To be effective, such ratification must be in the form of a written document clearly stating that ratification of a previously unauthorized act is intended and must be signed by a person authorized to ratify such acts. Generally such ratification may

be made only by an official on whose behalf the contract was made and then only: (a) If he could have given authority to enter into the contract before it was awarded and (b) if he still has power to do so at the time of ratification.

§ 1-1.406 Cost Accounting Standards.

The contracting officer or his authorized representative shall:

(a) Determine the adequacy of prime Contractor's Disclosure Statement(s)— Cost Accounting Practices and Certification (see § 1-3.1203(a));

(b) Determine whether prime contractor's Disclosure Statements are in compliance with Part 1-15 and Cost Accounting Standards promulgated by the Cost Accounting Standards Board (see § 1-3.1220);

(c) Determine contractor compliance with Cost Accounting Standards and Disclosure Statements, if applicable; and

(d) Negotiate price adjustments and execute supplemental agreements pursuant to the Cost Accounting Standards clause set forth in § 1-3.1204. [39 FR 43058, Dec. 10, 1974]

Subpart 1-1.5-Contingent Fees

§ 1-1.500 Scope of subpart.

This subpart prescribes the use by executive agencies of the "covenant against contingent fees" and sets forth the policies, forms, methods, procedure, principles, and standards related thereto. The requirements of this subpart have as their objective the prevention of improper influence in connection with the obtaining of Government contracts, the elimination of arrangements which encourage the payment of inequitable and exorbitant fees bearing no reasonable relationship to the services actually performed, and the prevention of unwarranted expenditure of public funds which inevitably results therefrom. The methods used to achieve these objectives are the requirement for disclosure of the details of arrangements under which agents represent concerns in obtaining Government contracts, and the prohibiting, by use of the covenant against contingent fees,

of certain types of contractor-agent arrangements.

§ 1-1.501 Applicability.

The provisions of this subpart apply to all contracts for the procurement of personal property and nonpersonal services, including the procurement of construction. The Criminal Code will apply in any case involving actual criminal conduct.

§ 1-1.502 Improper influence.

The term "improper influence" means influence, direct or indirect, which induces or tends to induce consideration or action by any employee or officer of the United States with respect to any Government contract on any basis other than the merits of the matter.

§ 1-1.503 Covenant.

Executive agencies shall include in every negotiated or advertised contract a "covenant against contingent fees" substantially as follows (set forth as clause 11 of Standard Form 19, Invitation, Bid, and Award (Construction, Alteration or Repair); as clause 17 of Standard Form 23-A, General Provisions (Construction Contract); and as clause 20 of Standard Form 32, General Provisions (Supply Contract)):

COVENANT AGAINST CONTINGENT FEES

The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty the Government shall have the right to annul this contract without liability or in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee.

[31 FR 5880, Apr. 16, 1966]

(a) The term "bona fide employee," for the purpose of the exception to the prohibition of the covenant, means an individual (including a corporate officer) employed by a concern in good faith to devote his full time to such concern and no other concern and over whom the concern has the right to exercise supervision and control as to time, place, and manner of performance of work. It is recognized that a concern, especially a small business concern, may employ an individual who represents other concerns. The factors set forth in § 1-1.504-5(b), except (4) thereof, shall be applied to determine whether such an individual comes within the exception to the prohibition of the covenant.

(b) The hiring must contemplate some continuity and it may not be related only to the obtaining of one or more specific Government contracts.

(c) An employee is not "bona fide" who seeks to obtain any Government contract or contracts for his employer through the use of improper influence or who holds himself out as being able to obtain any Government contract or contracts through improper influence.

(d) A person may be a bona fide employee whether his compensation is on a fixed salary basis or, when customary in the trade, on a percentage, commission or other contingent basis, or a combination of the foregoing.

§ 1-1.504-5

Bona fide established commercial or selling agency maintained by the contractor for the purpose of securing business.

(a) An agency or agent is not "bona fide" which seeks to obtain any Government contract or contracts for its principals through the use of improper influence or which holds itself out as being able to obtain any Government contract or contracts through improper influence.

(b) In determining whether an agency is a "bona fide established commercial or selling agency maintained by the contractor for the purpose of securing business," the factors set forth below shall be considered. They are necessarily incapable of exact measurement or precise definition and it is neither possible nor desirable to prescribe the relative weight to be given any single factor as against any other factor or as against all other factors. The conclusions to be reached in a given case will necessarily depend upon a careful evaluation of the agreement and other attendant facts and circumstances.

(1) The fees charged should not be inequitable and exhorbitant in relation to the services actually rendered. That is, the compensation should be commensurate with the nature and extent of the services and should not be excessive as compared with the fees customarily allowed in the trade concerned for similar services related to commercial (non-Government) business. In evaluating reasonableness of the fee, there should be considered services of the agent other than actual solicitation, as for example, technical, consultant or managerial services, and