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Subpart 1-1.17—[Reserved]

Subpart 1-1.18-Postaward Orientation of Contractors

SOURCE: Subpart 1-1.18 appears at 31 FR 12437, Sept. 20, 1966, unless otherwise noted.

§ 1-1.1800 Scope of subpart.

The subpart prescribes policies and procedures regarding the postaward orientation of contractors performing contracts and subcontracts for supplies and services (except construction).

§ 1-1.1801 [Reserved]

§ 1-1.1802 Policy.

(a) When it is determined after contract award that the contractor does not or may not have a clear understanding of the scope of the contract, of its technical requirements, or of the rights and obligations of the parties, postaward

orientation conferences may be employed (see § 1-1.1803) in order to clarify these matters. Where less complex contracts are involved, simpler means may be used, such as a letter to the contractor (see § 11.1806). Postaward orientation of subcontractors also may be employed (see § 1-1.1804).

(b) However, a postaward orientation conference may not be used in substitution for affirmative preaward determinations as to a bidder's responsibility, e.g., as to his willingness and ability to comply with the equal employment opportunity requirements.

[31 FR 12437, Sept. 20, 1966, as amended at 36 FR 17421, Aug. 31, 1971]

§ 1-1.1803 Postaward orientation confer

ences.

§ 1-1.1803-1 Factors.

In selecting contracts for postaward orientation, the selection should include consideration of the following factors:

(a) Nature and extent of the preaward survey and any prior discussions had with the contractor;

(b) Technical complexity of the item or service;

(c) End use of the item or service, particularly its relation to critical programs;

(d) Urgency of the delivery schedule; (e) Length of the planned production cycle;

(f) Past performance of the contractor;

(g) Procurement history of the item or service;

(h) Type and value of the contract; (i) Requirements for spare parts or related equipment;

(j) Contractor's experience with the agency's contracts, or with the item or service being procured;

(k) Extent of subcontracting; and (1) Safety precautions required for hazardous materials or operations.

§ 1-1.1803-2 Initial action.

(a) The need for a postaward orientation conference normally will be established by the contracting officer or the head of the office in charge of contract administration as a result of substantive review and analysis of the contract and related reports. It is desirable for interested Government personnel to hold a meeting prior to the conference to assure that an appropriate and coordinated Government position is developed regarding indicated questions and problems.

(b) An orientation conference should be held, as soon as possible after the contract award, when analysis of the contract or other information indicates that existing or potential problems may adversely affect the performance of the contract. The official who determines that a postaward orientation conference is needed should normally make all necessary arrangements to:

(1) Conduct a preliminary meeting of Government personnel;

(2) Establish the time and place of the orientation conference;

(3) Prepare an agenda or checklist; (4) Notify all participants;

(5) Designate a conference chairman (this should be the contracting officer if he will be a participant); and

(6) Prepare a summary report of the conference, when necessary. When the contracting officer initiates the request for a conference, the arrangements referred to in this paragraph

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§ 1-1.1803-4 Participants.

It is essential that all parties involved in the execution, administration, and performance of a Government contract have a clear and mutual understanding of the scope of the contract, the technical requirements, and the rights and obligations of the parties. Participants in a postaward orientation conference may include, as appropriate, the contracting officer, representatives from the contracting office and from the office in charge of administration, other interested Government personnel, and the contractor's representatives.

§ 1-1.1803-5 Conference procedure.

The conference shall be conducted by the designated Government chairman, normally the contracting officer if he is a participant. Unless a specific contract change has been agreed to by the contracting officer at the preliminary meeting of Government person

nel to be in the best interest of the Government, the chairman should emphasize that the conference is not being held for the purpose of changing the contract. Where the contracting officer participates in the conference, he may make commitments or give directions within the scope of his authority and he should, to the extent necessary, reduce to writing and sign any such commitments or directions. Participants who are without authority to bind the Government contractually should not take actions which may give the contractor the impression that the provisions of the contract are being altered. However, such participants, subject to any limitations placed upon their authority, may provide information and guidance to explain existing provisions and requirements of the contract. Where a summary report of the conference is to be prepared, the report should cover such matters as are set forth in § 1-1.1805.

§ 1-1.1804 Subcontract conferences.

The prime contractor is generally responsible for conducting any necessary postaward orientation conferences with subcontractors. However, in exceptional cases involving subcontracted items or services which are technically complex the prime contractor may invite the Government to participate in a conference or the Government may request the prime contractor to initiate such a conference with the subcontractor. Representatives from the Government office in charge of administration of the prime contract and subcontracts thereunder, should be included as participants. Government participants in such conferences should give due regard to the lack of contractual privity (normally none exists) between the Government and subcontractors. Accordingly, they should not make commitments, give directions, or take any actions which change or are inconsistent with the provisions of the subcontract.

§ 1-1.1805 Reports.

Summary reports of conferences should be prepared as provided by agency procedures. Such reports should cover the significant items discussed, including areas requiring reso

lution, controversial matters, and the names of the participants or units assigned responsibility for further actions, as well as the due dates for such actions.

§ 1-1.1806 Postaward letters.

Where less complex contracts are involved, a letter to the contractor may be sufficient. In such cases, the letter should identify the Government representative responsible for administering the contract and should cite any unusual contract requirements such as special reports, revised specifications, preproduction tests, subcontracting consent requirements, Government property to be furnished, and any other significant requirements.

Subpart 1-1.19-1-1.22-[Reserved]

Subpart 1-1.23—Environmental Protection

SOURCE: Subpart 1-1.23 appears at 40 FR 36339, Aug. 20, 1975, unless otherwise noted.

§ 1-1.2300 Scope of subpart.

This subpart prescribes policies and procedures regarding the requirements of the Clean Air Act, as amended (42 U.S.C. 1857 et seq., as amended by Pub. L. 91-604, December 31, 1970), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq., as amended by Pub. L. 92-500, October 18, 1972), Executive Order 11738, September 10, 1973, and the related regulations of the Environmental Protection Agency (EPA) (40 CFR Part 15).

§ 1-1.2301 Policy.

(a) Executive Order 11738 provides in section 1 that "It is the policy of the Federal Government to improve and enhance environmental quality. In furtherance of that policy, the program prescribed in this Order is instituted to assure that each Federal agency empowered to enter into contracts for the procurement of goods, materials, or services, and each Federal agency empowered to extend Federal assistance by way of grant, loan, or contract shall undertake such procurement and assistance activities in a manner that will result in effective en

forcement of the Clean Air Act (hereinafter referred to as the 'Air Act') and the Federal Water Pollution Control Act (hereinafter referred to as the 'Water Act')."

(b) Except as provided in § 1-1.23024, no executive agency shall enter into, renew, or extend any contract for the procurement of goods, materials, or services to a firm proposing to use in the performance thereof a facility which is listed by the Director, Office of Federal Activities, Environmental Protection Agency (EPA), pursuant to 40 CFR 15.20, as a violating facility under either the Air Act or the Water Act.

§ 1-1.2302 Administration and enforcement.

§ 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 13.6)) 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 [ 1, 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.

§ 1-1.2302-2 Contract clause.

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. 1857c6 (c) or (d)), or an approved implementation 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, Environmental Protection Agency, determines that independent facilities are collocated in one geographical area.

40-104 0-79--9

§ 1-1.2302-3 Compliance responsibilities.

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.

are

Contracts and subcontracts 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 § 1-1.2302-1, 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.

Subpart 1-1.24-[Reserved]

Subpart 1-1.25-Recovered Materials

SOURCE: Subpart 1-1.25 appears at 43 FR 53729, Nov. 17, 1978, unless otherwise noted.

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