§ 1-1.2302-1 Solicitation provision.

The provisions set forth below shall be included in each solicitation and resulting contract, (except those involving small purchases (see Subpart 1-3.6)) and contracts awarded without reference to a solicitation.

CLEAN AIR AND WATER CERTIFICATION

(Applicable if the bid or offer exceeds $100,000, or the contracting officer has determined that orders under an indefinite quantity contract in any year will exceed $100,000, or a facility to be used has been the subject of a conviction under the Clean Air Act (42 U.S.C. 1857c-8 (c)(1)) or the Federal Water Pollution Control Act (33 U.S.C. 1319 (c)) and is listed by EPA, or is not otherwise exempt.)

The bidder or offeror certifies as follows:

(a) Any facility to be utilized in the performance of this proposed contract has, has not, been listed on the Environmental Protection Agency List of Violating Facilities.

(b) He will promptly notify the contracting officer, prior to award, of the receipt of any communication from the Director, Office of Federal Activities, Environmental Protection Agency, indicating that any facility which he proposes to use for the performance of the contract is under consideration to be listed on the EPA List of Violating Facilities.

(c) He will include substantially this certification, including this paragraph (c), in every nonexempt subcontract. Contract clause.

§ 1-1.2302-2

The following clause shall be included in all contracts except those involving small purchases:

CLEAN AIR AND WATER

(Applicable only if the contract exceeds $100,000, or the contracting officer has determined that orders under an indefinite quantity contract in any one year will exceed

$100,000, or a facility to be used has been the subject of a conviction under the Clean Air Act (42 U.S.C. 1857c-8(c)(1)) or the Federal Water Pollution Control Act (33 U.S.C. 1319 (c)) and is listed by EPA, or the contract is not otherwise exempt.)

(a) The Contractor agrees as follows: (1) To comply with all the requirements of section 114 of the Clean Air Act, as amended (42 U.S.C. 1857, et seq., as amended by Pub. L. 91-604) and section 308 of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq., as amended by Pub. L. 92-500), respectively, relating to inspection, monitoring, entry, reports, and information, as well as other requirements specified in section 114 and section 308 of the Air Act and the Water Act, respectively, and all regulations and guidelines issued thereunder before the award of this contract.

(2) That no portion of the work required by this prime contract will be performed in a facility listed on the Environmental Protection Agency List of Violating Facilities on the date when this contract was awarded unless and until the EPA eliminates the name of such facility or facilities from such listing.

(3) To use his best efforts to comply with clean air standards and clean water standards at the facility in which the contract is being performed.

(4) To insert the substance of the provisions of this clause into any nonexempt subcontract, including this paragraph (a) (4).

(b) The terms used in this clause have the following meanings:

(1) The term "Air Act" means the Clean Air Act, as amended (42 U.S.C. 1857 et seq., as amended by Pub. L. 91604).

(2) The term "Water Act" means Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et seq., as amended by Pub. L. 92-500).

(3) The term "clean air standards" means any enforceable rules, regulations, guidelines, standards, limitations, orders, controls, prohibitions, or other requirements which are contained in, issued under, or otherwise adopted pursuant to the Air Act or Executive Order 11738, an applicable implementation plan as described in section 110 (d) of the Clean Air Act (42 U.S.C. 1857c-5 (d)), an approved implementation procedure or plan under section 111 (c) or section 111(d), respectively, of the Air Act (42 U.S.C. 1857c-6 (c) or (d)), or an approved implemen

tation procedure under section 112(d) of the Air Act (42 U.S.C. 1857c-7(d)).

(4) The term "clean water standards" means any enforceable limitation, control, condition, prohibition, standard, or other requirement which is promulgated pursuant to the Water Act or contained in a permit issued to a discharger by the Environmental Protection Agency or by a State under an approved program, as authorized by section 402 of the Water Act (33 U.S.C. 1342), or by local government to ensure compliance with pretreatment regulations as required by section 307 of the Water Act (33 U.S.C. 1317).

(5) The term "compliance" means compliance with clean air or water standards. Compliance shall also mean compliance with a schedule or plan ordered or approved by a court of competent jurisdiction, the Environmental Protection Agency or an air or water pollution control agency in accordance with the requirements of the Air Act or Water Act and regulations issued pursuant thereto.

(6) The term "facility" means any building, plant, installation, structure, mine, vessel or other floating craft, location, or site of operations, owned, leased, or supervised by a contractor or subcontractor, to be utilized in the performance of a contract or subcontract. Where a location or site of operations contains or includes more than one building, plant, installation, or structure, the entire location or site shall be deemed to be a facility except where the Director, Office of Federal Activities, Environment Protection Agency, determines that independent facilities are collocated in one geographical area.

The primary responsibility for ensuring compliance with Federal, State, or local environmental control laws and any rules, regulations, standards, or guidelines issued pursuant thereto rests with those agencies, such as the Environmental Protection Agency, charged with this responsibility under the various laws concerned. However, if the contracting officer, in the performance of his regular duties, becomes aware of any condition which involves noncompliance with clean air or water standards in any facility being used in the performance of a nonexempt agency contract, he shall notify the agency head or his designee

in accordance with agency procedures. The agency head or his designee shall promptly transmit such reports to the Director, Office of Federal Activities, EPA, Washington, DC, 20460.

§ 1-1.2302-4 Exemptions.

Contracts and subcontracts are exempt from the requirement of this subpart and 40 CFR Part 15 in accordance with the provisions of this section (see exclusion in paragraph (c)).

(a) Transactions $100,000 and under. Contracts and subcontracts not exceeding $100,000 are exempt.

(b) Contracts and subcontracts for indefinite quantities. Contracts and subcontracts for indefinite quantities are exempt if the contracting officer has reason to believe that the amount ordered in any year under such contract will not exceed $100,000.

(c) Exclusion. Except for small purchases, the foregoing exemptions shall not apply to a proposed contract under which the facility to be used is listed on the EPA List of Violating Facilities on the basis of a conviction either under the Air Act (42 U.S.C. 1857c-8(c) (1)) or the Water Act (33 U.S.C. 1319 (c)).

(d) Facilities located outside the United States. This subpart and 40 CFR Part 15 do not apply to the use of facilities located outside the United States. The term "United States", as used herein, includes the States, District of Columbia, Commonwealth of Puerto Rico, Virgin Islands, Guam and American Samoa, and Trust Territory of the Pacific Islands.

(e) Authority of head of an agency. Where a head of an agency, as defined in § 1-1.204, determines that the paramount interest of the United States so requires, he may exempt from the provisions of this subpart any individual or class of contracts or subcontracts, for a period of one year. Class exemptions shall follow consultation with the Director, Office of Federal Activities, EPA, Washington, DC, 20460. In the case of an individual exemption, the agency head granting the exemption shall notify the Director as soon after granting the exemption as practicable. Such notification shall describe the purpose of the contract and shall indicate the manner in which the paramount interest of the United States required that the exemption be made.

§ 1-1.2302-5 Withholding award.

If, pursuant to the certification in § 11.2302-1, the otherwise successful offeror informs the contracting officer that the EPA is considering listing a facility proposed to be used for contract performance, the contracting officer shall promptly notify the Director, Office of Federal Activities, EPA, Washington, DC, 20460, according to agency procedures, that the offeror is under consideration for award. The Director, Office of Federal Activities, EPA, after consultation with the agency involved, may request the contracting officer to delay award for a period not to exceed 15 working days. The 15 working days shall begin on the date the Director is notified by the agency that such award is under consideration. Awards shall be withheld except when such delay is likely to prejudice the agency's programs or otherwise seriously disadvantage the Government. Prompt notice shall be given to the Director in any case where such determination to award has been made.

1-2.102

Policy.

drawals.

Subpart 1-2.4-Opening of Bids and Award

of Contract

1-2.104-1

General.

1-2.401

1-2.104-2 Firm fixed-price contracts.

1-2.402

Receipt and safeguarding of bids. Opening of bids.

1-2.104-3

Fixed-price contracts with escalation.

1-2.105

1-2.104-4 Indefinite delivery-type contracts. Solicitation for information or planning purposes.

1-2.106

Procurement management reviews.

Cancellation of invitation after

1-2.404-1

1-2.404-2

1-2.404-3

1-2.404-4

1-2.404-5 1-2.405

1-2.406

§ 1-2.101

Meaning of formal advertis

ing. Formal advertising means procurement by competitive bids and awards. as prescribed in this Part 1-2, and involves the following basic steps:

(a) Preparation of the invitations for bids, describing the requirements of the Government clearly, accurately, and completely, but avoiding unncessarily restrictive specifications or requirements which might unduly limit the number of bidders. The term "invitation for bids" means the complete assembly of related documents (whether attached or incorporated by reference) furnished prospective bidders for the purpose of bidding.

(b) Publicizing the invitation for bids through distribution to prospective bidders, posting in public places, and such other means as may be appropriate, in sufficient time to enable prospective bid

ders to prepare and submit bids before the time set for public opening of bids (c) Submission of bids by prospective contractors.

(d) Awarding the contract, after bids are publicly opened, to that responsible bidder whose bid, conforming to the invitation for bids, will be most advantageous to the Government, price and other factors considered.

§ 1-2.102 Policy.

(a) Procurement shall be made by formal advertising whenever such method is feasible and practicable under the existing circumstances even though such conditions and circumstances would otherwise satisfy the requirements of Subpart 1-3.2. In accordance with this requirement, procurements shall generally be made by soliciting bids from all qualified sources of supplies or services deemed necessary by the contracting officer to assure full and free competition consistent with the procurement of the required property or services. Current lists of bidders shall be maintained in accordance with § 1-2.205.

(b) For requirements applicable to the pricing of modifications of formally advertised contracts see § 1-3.807-3.

(c) As directed by statute (section 310 of the Federal Property and Administrative Services Act of 1949, as amended by section 5. 79 Stat. 1303, 41 U.S.C. 260) executive agencies shall not follow the advertising procedures of sections 3709 and 3710 of the Revised Statutes, but shall comply with the advertising requirements of Title III of the Federal Property and Administrative Services Act of 1949 (hereafter in this Part 1-2 referred to as "the Act") unless otherwise authorized by law.

(d) Where an agency, acting under section 602(d) of the Act or other law. makes inapplicable to it Title III of the Act, or sections 302(c) and 303 thereof sections 3709 and 3710 of the Revised Statutes shall apply, unless by statute the agency is authorized to procure without advertising or without regard to said section 3709.

[30 FR 9592, July 31, 1965, as amended at 31 FR 348, Jan. 12, 1966]

§ 1-2.103 General requirements for formally advertised contracts.

No contract shall be deemed to have been made by formal advertising unless: (a) Bids have been solicited as required by Subpart 1-2.2;

(b) Bids have been submitted as required by Subpart 1-2.3; and

(c) Determination has been made as to the responsible bidder (see Subpart 1-1.12) whose bid is responsive to the invitation for bids and is most advantageous to the Government, price and other factors considered, and award is made as prescribed in Subpart 1-2.4. [29 F.R. 10141, July 24, 1964, as amended at 36 F.R. 17421, Aug. 31, 1971]

§ 1-2.104 Types of contracts. §1-2.104-1 General.

Procurement contracts awarded after formal advertising shall be of the firm fixed-price type, except that fixed-price contracts with escalation may be used where some flexibility is necessary and feasible.

§ 1-2.104-2 Firm fixed-price contracts. See § 1-3.404-2.

§ 1-2.104-3 Fixed-price contracts with escalation.

Escalation clauses are not normally desirable, but in appropriate cases clauses providing for upward and downward revision of prices may be used, in accordance with § 1-3.404-3, in order to protect the interest of both the Government and contractor. In addition, where the contracting officer, on the basis of his knowledge of the market or previous advertisements for like items, expects that a requirement for firm fixed-price bids will unnecessarily restrict competition or unreasonably increase bid prices, invitation for bids may include an escalation clause approved by the agency concerned. Any escalation clause shall provide an escalation ceiling identical for all bidders so that each bidder is afforded an equal opportunity to bid on the escalation basis. In evaluating bids, see § 1-2.407-4. § 1-2.104-4 Indefinite delivery-type con

Each agency shall maintain a procurement management review program for examining on a continuing basis the effectiveness and efficiency of its formal advertising procurement operations. Specific attention shall be given to solicitation content and form, distribution of solicitations, bidders mailing lists, review and evaluation of bids received, response rates, personnel training, and any other matters which affect meaningful competition and the overall efficiency and economy of formal advertising. [40 FR 2811, Jan. 16, 1975]

Subpart 1-2.2-Solicitation of Bids § 1-2.201 Preparation of invitations for

bids.

Forms used in inviting bids are prescribed in Subparts 1-16.1 and 1-16.4 Invitations for bids shall contain the ap plicable information in paragraphs (a) and (b) of this § 1-2.201, and any other information required for a particular procurement.

(a) For supply and service contracts, Including construction, invitations for bids shall contain the following information if applicable to the procurement involved. Additional items peculiar to construction contracts are enumerated in

1-18.203-1(b).

(1) Invitation number.

(2) Name and address of issuing activity.

(3) Date of issuance.

(4) Date, hour, and place of opening. Prevailing local time shall be used. See § 1-2.202-1 concerning bidding time.) (5) Number of pages.

(6) Where required by agency procedures, requisition or other purchase authority, and appropriation and accountIng data.

(7) A description of supplies or services to be furnished under each item in sufficient detail to permit full and free competition. Such description shall comply with §§ 1-1.305 and 1-1.307.

(8) The time of delivery or performance requirements (see § 1-1.316).

(9) Permission, if any, to submit telegraphic bids (see § 1-2.202–2).

(10) Permission, if any, to submit alternative bids, including alternative material or design.

(11) A statement in the invitation that "Bids must set forth full, accurate. and complete information as required by