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Subpart 15-1.3-General Policies

8 15-1.009-2 Procedure.

Deviations from FPR and EPPR shall be kept to a minimum and controlled as follows:

(a) Requests for deviations to FPR and this regulation in individual cases and to this regulation in classes of cases shall be submitted for approval in advance to the Director, Contracts Management Division.

(b) Requests for deviations to FPR in classes of cases shall be submitted in advance to the Director, Contracts Management Division, for processing accordance with FPR 1-1.009-2.

(c) The requests submitted under paragraphs (a) and (b) of this section shall cite the specific part of FPR or EPPR from which it is desired to deviate; shall set forth the nature of the deviations; and shall give the reasons for the action requested.

(d) The above procedures do not apply to the Procurement and Contracting for Automated Data Processing Equipment, Software, Maintenance Services, and Supplies, see FPR 1-1.009-3.

(5 U.S.C. 301) (42 FR 63783, Dec. 20, 1977)

8 15-1.313 Record of contract actions.

(a) All EPA procurement activities performing purchasing and contract administration functions shall assemble and maintain official records of all actions with respect to solicitations and contracts.

(b) To the extent that retained copies of contractual documents and correspondence do not reflect all actions taken, suitable memoranda of the undocumented actions shall be prepared promptly and placed in the appropriate official contract file.

(c) Authenticated or conformed copies of contractual instruments and signed or official record copies of correspondence, memoranda, and other documents shall be used in compiling the official files. Except to the extent that contract clauses or specifications are incorporated by reference, conformed copies shall be complete and accurate copies of the contractual instrument, including the date of execution and the names and titles of signatories.

(d) Each contract file shall include the following as appropriate for the type and dollar value of contract, actions involved, and functions assigned to the procurement activity except for small purchases (see FPR Subpart 13.6 and § 15-1.313(e)):

(1) Procurement planning data;

(2) A copy of the Procurement Request/Requisition, EPA Form 1900-8, including the certification of availability of funds;

(3) Appropriate determination and findings as required by FPR Subpart 1-3.3 to justify authority to negotiate, method of contracting, and advance payments;

(4) A signed justification for noncompetitive procurement;

(5) Required preaward clearances;

(6) Any small business or labor surplus area set-aside determination or consideration given thereto (see FPR 1-1.706 and FPR 1-1.804);

(7) Justification for use of "brand name or equal” purchase description (see FPR 1-1.307-5);

(8) Synopsis of the proposed procurement or reference thereto;

Subpart 15-1.2-Definition of Terms

$ 15-1.206 Head of the procuring activity.

“Head of the procuring activity" means the Director, Contracts Management Division, Office of Administration, Office of the Assistant Administrator for Planning and Management.

(5 U.S.C. 301) [42 FR 63783, Dec. 20, 1977)

8 15–1.250 Chief officer responsible for

procurement at the contracting activi.

ty. “Chief officer responsible for procurement at the contracting activity” means the Director, Contracts Management Division, Cincinnati; the Director, Contracts Management Division, Research Triangle Park; and the Chief, Headquarters Contract Operations.

(5 U.S.C. 301) (42 FR 63783, Dec. 20, 1977)

(9) List of sources solicited, justification for limiting sources, and a list of firms or persons whose requests for copies of the solicitation were denied together with the reasons for denial;

(10) A copy of the solicitation, including applicable drawings and specifications or reference therto;

(11) Any amendments to the solicitation;

(12) One copy of each signed bid or proposal received, and a record of any late bids or proposals received (see FPR 1-2.303 and FPR 1-3.802-1);

(13) The abstract of bids or record of proposals received, including "no bid” or “no proposal” correspondence;

(14) The technical evaluation report;

(15) Documentation for mistakes in bid and protests of award (see FPR 12.406 and FPR 1-2.407-8);

(16) Documentation for selection of the successful contractor, including:

(i) Reasons for selection, including negotiation memorandum,

(ii) Contracting officer's determination of the contractor's responsibility (see FPR 1-1.1204), and a copy of each preaward survey performed (see FPR 1-1.1205-4) or reference to previous surveys relied upon.

(iii) Any Small Business Administration certificate of competency (see FPR 1-1.708), and

(iv) Justification of award to other than low bidder,

(17) Evidence of compliance with equal employment opportunity policies (EPA Form 1900-35, Request for Equal Opportunity Clearance of Contract Award),

(18) All cost and pricing data submitted or used, including Certificates of Current Cost or Pricing Data (see FPR 1-3.807-3 and FPR 1-3.807-4), and a copy of the Government price or cost estimate;

(19) Price or cost analysis report;

(20) Audit reports or reasons for waiver;

(21) Record of price negotiation (see FPR 1-3.811);

(22) Justification for type of contract used (see FPR 1-3.403);

(23) Exceptions or exemptions from the Buy American Act (see FPR Part 1-6);

(24) Required approvals of award;

(25) Notice of award;

(26) Notice of Intention to Make a Service Contract and Response to Notice (Standard Form 98) when the prospective contract is subject to the Service Contract Act, and Notice of Award (Standard Form 99) when the contract is subject to either the Seryice Contract Act or the Walsh-Healey Public Contracts Act;

(27) A signed or authenticated copy of the contract and all contract modifications, together with signed or official record copies of documents supporting the modifications;

(28) Synopsis of award or reference thereto (see FPR 1-1.1004);

(29) Notice to unsuccessful bidders (see FPR 1-2.408) or offerors (see FPR 1-3.103(b));

(30) Bid bond (Standard Form 24), performance bond (Standard Form 25) and payment bond (Standard Forms 25A and 25B) or other bond documents, or a refernce therto, and notice to sureties, in case of construction contracts (see FPR Subpart 1-10.1 and 110.2);

(31) Post award conference record (see FPR 1-1.1803);

(32) Approved subcontracts and supporting documentation (see FPR Subpart 1-3.9);

(33) Inspection and acceptance documentation (see FPR 1-14.11 and FPR 1-14.201);

(34) Payment vouchers and invoices;

(35) Release from liabilities, obligations, and claims (see FPR 1-1.5002-1);

(36) Records relating to Government furnished or contractor acquired property and disposition thereof;

(37) Record of approvals or disapprovals of waivers or deviations from contract requirements;

(38) Royalty, invention, and copyright reports or reference thereto (see Subpart 15-9);

(39) The documentation concerning termination is contained in $ 151.5002-4;

(40) Reference to other pertinent documents which are filed elsewhere because they pertain to more than one contract or to the contractor generally;

(41) Designation of contracting officer representatives;

or

(42) Reocrds concerning disputes and litigation; and

(43) Other pertinent correspondence, messages memoranda including documents supporting advance progress payments.

(e) Where small purchase procedures are used in accordance with FRP Subpart 1-3.6, the file shall include the following documentation:

(1) Purchase request and purchase orders;

(2) Record of oral solicitation(s) (EPA Form 1900-13) or copy of written solicitation(s);

(3) Record of oral quotation(s) (EPA Form 1900-13) or copy of written quotation(s);

(4) Statement setting forth the basis of determination of fair and reasonable price, when only one response is received and the procurement is over $500;

(5) Justification for noncompetitive procurement when over $500;

(6) Copies of documentation involving action taken with respect to habitually delinquent vendors;

(7) Evidence of receipt and acceptance of supplies or services:

(8) Other documentation as required by FPR 1-3.606-4 when a blanket purchase arrangement is involved; and

(9) In respect to oral purchase orders, a copy of the vendor's invoice endorsed by an authorized Government representative evidencing receipt of property or service. If it is not possible to obtain a copy of the invoice, a record shall be maintained showing price and date of receipt of personal property or nonpersonal services ordered.

advisability of attempting to mediate the dispute or hear out the contractor through discussion meetings or other means. The contracting officer is required to effect the prompt determination of disputes arising out of the performance of contracts. He is required to give his personal and independent consideration to the making of each determination to decision with the aid of such technical and legal advice as may be necessary. The contracting officer shall thoroughly examine the project officer's files on the contract to determine the project officer's relationship with the contractor. The contracting officer shall discuss the contractor's claim with the project officer, a representative of the office of the Associate General Counsel, Grants, Contracts and General Administration, and representatives of such other EPA offices as are appropriate to the dispute, e.g., Contracts Management Division, Office of Audit, etc. These representatives shall furnish the contracting officer their respective opinions. However, he must not base his decision on summary advice from members of his legal, technical, and administrative team, since the decision must be the result of the independent judgment and discretion of the contracting officer. He must obtain and study all the facts which bear upon the issue before him. He must insist that his advisors in technical areas give him concrete advice on how to decide and present him with a detailed, understandable statement of the reasoning process by which they arrive at their conclusions.

(2) When a dispute cannot be resolved by agreement, the contracting officer should prepare a final decision on the matter in dispute. The decision should include the allegations made by the contractor, the specific findings of fact which form the basis for the decision, and a terminal paragraph substantially as prescribed in FPR 11.318-1. The contracting officer should insure that the contract file includes the following information:

(i) The complete contract including all amendments, supplemental agreements and change orders, pertinent plans, specifications and drawings, and all pertinent preaward papers;

(5 U.S.C. 301) (42 FR 63784, Dec. 20, 1977; 43 FR 967, Jan. 5, 1978)

§ 15-1.318 Disputes clause. [36 FR 20947, Nov. 2, 1971)

8 15-1.318-1 Contracting officer's decision

under a disputes clause. (a) Action prior to issuance of a final decision. (1) In resolving a dispute, the contracting officer must understand that the Environmental Protection Agency (EPA) does not seek litigation as an end in itself. The contracting officer should consider the

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(ii) All correspondence and memo- prompt method of disposal of claims randa, and minutes of meetings or and potential disputes. Final decisions telephone conversations pertinent to may be made only by authorized conthe dispute;

tracting officers; other personnel, (iii) The names and addresses of all unless expressly authorized, may not persons, including contractor person- increase or decrease the contractual nel, if known, having information con- obligations of the contractor or of the cerning the facts in dispute;

Government. (3) Any additional information or (d) Use of Interior Board of Contract advice which the contracting officer Appeals. Pursuant to an interagency considered in forming his decision, in- agreement (EPA-IAG-0002(R)) becluding such items interoffice tween the EPA and the Department of memoranda, sample photographs, and the Interior Board of Contract Apinspection, audit and financial reports. peals (IBCA), the IBCA will hear ap

(b) Issuance of final decision. (1) peals from final decisions of EPA conThe finality of a final decision under tracting officers issued pursuant to FPR 1-1.318-1 depends upon the con- the disputes clause in EPA contracts. tracting officer's compliance with the The rules and regulations of the IBCA regulations. If a telegram is used, it appear in 43 CFR Part 4. should be a complete final decision (e) Action upon receipt of notice of containing the terminal paragraph appeal. (1) When a notice of appeal in substantially as prescribed by FPR 1- any form has been received by the 1.318-1. The final decision should be contracting officer, he shall endorse promptly mailed to the contractor by thereon the date of mailing (or the certified mail, return receipt request- date of receipt if the notice was othered.

wise conveyed) and within 5 days shall (2) Since the Board's jurisdiction of forward said notice of appeal to the an appeal depends upon contractor's IBCA by certified mail. The notice will mailing or otherwise furnishing a be accompanied by a letter of transnotice of appeal within 30 days follow- mittal stating the financial codes to be ing receipt by the contractor of the used by the Department of the Interifinal decision, the contracting officer or in billing EPA for services of the shall preserve proof of the date of con- IBCA. At the same time, he shall teletractor's receipt of the final decision phonically notify the Office of the Asand of the date of mailing, furnishing sociate General Counsel, Grants, Conor filing of the notice of appeal. Thus, tracts and General Administration the contracting officer should preserve that the appeal has been received so the return receipt covering the final that Government counsel may be apdecision, and the postmarked envelope pointed. in which the notice of appeal was re- (2) Notice of appeal, whether filed ceived, and if the notice was furnished within the time prescribed by the in some way other than mailing, the “Disputes” clause or not, will be subcontracting officer should endorse on mitted to the IBCA. The contracting the document the date of receipt.

officer will forward promptly every (c) Prohibition of preliminary final notice of appeal to IBCA even if the decisions. Contracting officers and intention to appeal is only vaguely or their duly authorized representatives indirectly expressed, and regardless of are cautioned against the practice of the form of the notice, or of the using “preliminary final decisions," method by which the notice was furwhen the proper course is a final deci- nished to the contracting officer. sion by the contracting officer. "Pre- (3) Copies of the notice of appeal liminary final decisions" generally act will be sent simultaneously to the Conin favor of the contractor and give him tracts Policy and Review Branch. Convaluable time in which to study the tracts Management Division and to Government position and to develop the Office of the Associate General rebuttals. A final decision by the con- Counsel, Grants, Contracts and Gentracting officer obligates the contrac- eral Administration. tor to decide within 30 days whether (f) Duties of the contracting officerhe will appeal. This is the prudent and appeal file. (1) Following receipt of a

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notice of appeal, or advice that an appeal has been filed, the contracting officer shall promptly compile the appeal file (copies of all documents pertinent to the appeal), and three duplicate. appeal files. The file shall include the following:

(i) The findings of fact and the decision from which the appeal is taken, and the letter or letters or other documents of claim in response to which the decision was issued;

(ii) The contract, and pertinent plans, specifications, amendments, and change orders;

(iii) Correspondence between the parties and other data pertinent to the appeal;

(iv) Transcripts of any testimony taken during the course of proceedings and affidavits, or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal with the Board;

(v) Such additional information as may be considered material.

(2) In addition to the above, the contracting officer will prepare an index listing each document included in the file submitted to the IBCA, and place copies of such index in the submission and duplicate files.

(3) Contracting Officers, in making the submission, may not submit original documents which are a part of the official contract file. Copies of the pertinent documents will be submitted.

(4) Within 15 days of receipt or advice of a notice of appeal the official and two duplicate files will be forwarded through the Contracts Management Division to the Office of the Associate General Counsel, Grants, Contracts and General Administration, who will review the file and will forward the official appeal file to the IBCA within the 35-day time limitation set forth in 43 CFR 4.103(b). One duplicate file will be retained by the contracting officer, one by the Contracts Management Division, and one by the Assistant General Counsel.

(5) If for any reason the contracting officer anticipates that he cannot make a timely submission, he will immediately advise the Associate General Counsel, Grants, Contracts and General Administration by telephone of the extent of the anticipated delay

and the reasons therefor. However, every effort will be exerted to make timely submissions.

(6) At the time of transmittal of the appeal file to the Board, the Assistant General Counsel, Grants and Procurement, shall notify the appellant of the transmittal, provide him with a listing of its contents, and afford him an opportunity to examine the file at the office of the contracting officer, at the office of the IBCA, or at some other suitable EPA office, for the purpose of satisfying himself as to the contents, and furnishing or suggesting any additional documentation deemed pertinent to the appeal. With his transmittal to the IBCA, the Associate General Counsel, Grants, Contracts and General Administration, shall certify that the appellant has been provided with the above-described listing. (g)

Relations with Government counsel. Contracting officers are reminded that they must cooperate fully with the Government Counsel signed to handle the case before the Board. The Government Counsel is the contracting officer's lawyer. It is especially important to advise Counsel of all pertinent evidence regardless of the effect it may have on the Government's case. No trial lawyer can be very effective if he learns of an embarrassing fact from his adversary during the hearing before the Board.

(h) Implementation-Adverse board decisions. Pursuant to Comptroller General Decision B-125096, September 9, 1963 (43 Comp. Gen. 231), contract modifications or releases given by the Government resulting from contract appeal board decisions adverse to the Government's position shall include the following provision: "Provided, however, That this instrument is not binding if the decision of the Interior Board of Contract Appeals, on which it is based, is later found to be in violation of the standards set forth in the Wunderlich Act (41 U.S.C. 321).”

(5 U.S.C. 301) (36 FR 20947, Nov. 2, 1971, as amended at 38 FR 21497, Aug. 9, 1973; 42 FR 63784, Dec. 20, 1977)

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