obtaining full and open competition in the acquisition process. Subpart 1506.2-Full and Open Competition After Exclusion of Sources [Reserved] Subpart 1506.3-Other Than Full and Open Competition 1506.302-5 Authorized or required by statute. (a) Authority. Section 109(e) of the Superfund Amendments and Reauthorization Act of 1986 (SARA) is cited as authority. (b) Application. (1) The contracting officer may use other than full and open competition to acquire the services of experts for use in preparing or prosecuting a civil or criminal action under SARA whether or not the expert is expected to testify at trial. The contracting officer need not prepare the written justification under FAR 6.303 when acquiring expert services under the authority of section 109(e) of SARA. The contracting officer shall document the official contract file when using this authority. (2) The contracting officer shall give notice to the Agency's Competition Advocate whenever a contract award is made using other than full and open competitition under this authority. The notice shall contain a copy of the contract and the summary of negotiations. [53 FR 31872, Aug. 22, 1988] 1506.303-2 Content. The documentation requirements in this section apply only to acquisitions processed using other than small purchase procedures. (Refer to 1513.170 for documentation for small purchase acquisitions). (a) The initiating office shall prepare a written justification for other than full and open competition (JOFOC) that documents the facts and circumstances substantiating the infeasibility of full and open competition for each recommended limited sources or sole source acquisition when required by FAR 6.302. (b) The recommendation shall be entitled "Justification for Other Than Full and Open Competition" and shall be signed at the programmatic Division Director or comparable office level prior to submission with the procurement request. The JOFOC shall contain the information prescribed in FAR 6.303-2 (a) and (b). (c) If unusual and compelling urgency (see FAR 6.303-2) is a basis for the JOFOC, then the following applies. Explain the circumstances that led to the need for an urgent contractual action. Explain why the requirement could not have been processed in sufficient time to permit full and open competition. It should be noted that the existence of legislation, court order, or Presidential mandate is not, of itself, a sufficient basis for a JOFOC. However, the circumstances necessitating legislation, court order, or Presidential mandate may justify contractual action on an other than full and open competition basis. (d) If the proposed acquisition has been synopsized in accordance with the applicable requirements in FAR subpart 5.2, the Contracting Officer must incorporate the evaluation of responses to the synopsis in the JOFOC. (See 1506.371(d) for contents of the evaluation document). [50 FR 14357, Apr. 11, 1985; 50 FR 15425, Apr. 18, 1985] PART 1508-REQUIRED SOURCES OF SUPPLY AUTHORITY: Sec. 205(c), 63 Stat. 390, as amended, 40 U.S.C. 486(c). Subpart 1508.8-Acquisition of 1508.870 Contract clause. Contracting Officers shall insert the contract clause at 1552.208-70, Printing, in all contracts which require printing, duplication, binding, reproduction, and related services and are subject to the provisions of the Government Printing and Binding Regulations published by the Joint Committee on Printing, Congress of the United States. [49 FR 8838, Mar. 8, 1984] and architect-engineer contractor performance evaluations. (b) The acquisition of commercial items in accordance with FAR 13.106 is not applicable to this subpart because simplified acquisition procedures do not require the creation or existence of a formal database for past performance evaluations. In cases where simplified acquisition procedures are not used to acquire commercial items (see FAR 12.203), this subpart is applicable to acquiring commercial items in excess of $100,000. (c) EPA Form 1900-26, Contracting Officer's Evaluation of Contractor Performance, and EPA Form 1900-27, Project Officer's Evaluation of Contractor Performance, shall apply to all performance evaluations completed prior to the effective date of this subpart. However, on the effective date of this rule, EPA Forms 1900-26 and 190027 are obsolete, and contracting officers shall complete all contractor performance evaluations by use of the National Institutes of Health's Contractor Performance System. [64 FR 20203, Apr. 26, 1999] 1509.170-4 Definitions. (a) Contractor Performance Report is an evaluation of a contractor's performance for a specified period of time. (b) Interim Report refers to a Contractor Performance Report that covers each 12 month period after the effective date of contract. (c) Final Report refers to a Contractor Performance Report that covers the last 12 months (or less) of contract performance. (d) Ratings refer to the numerical scores for each performance category. Ratings are defined as follows: 0 = unsatisfactory, 1 = poor, 2 fair, 3 = good, 4 excellent, and 5 = outstanding. = (e) Summary ratings refer to the ratings determined by one level above the contracting officer regarding disagreements between the contractor and the contracting officer. Summary ratings reflect the Agency's ultimate conclusion for the performance period being evaluated. (f) Performance Categories refer to the measures used to evaluate a contractor's performance. Performance categories are defined as quality, cost con trol, timeliness of performance, and business relations. [64 FR 20203, Apr. 26, 1999, as amended at 64 FR 41043, July 29, 1999] 1509.170-5 Policy. (a) Contracting officers are responsible for the timely completion of contractors' performance evaluations. The National Institutes of Health Contractor Performance System shall be used to record individual contractor performance histories on EPA contracts and to obtain contractor past performance information for use in EPA's source selection process. (b) Contracting officers are required to use the National Institutes of Health Contractor Performance System to record evaluations for all contract performance periods expiring after the effective date of this subpart. (c) Contractor evaluation information shall be recorded in Contractor Performance Reports (Report) which are generated by the National Institutes of Health system. Reports shall cover individual contractor evaluations at the contract level, which includes all work assignments, task orders, or delivery orders associated with the 12 month period being evaluated (interim Report) or the last 12 months (or less) of contract performance (final Report). (d) The contracting officer must complete interim Reports covering each 12 month period after the effective date of contract for all contracts in excess of $100,000, except those acquisitions identified in 1509.170-3, Applicability. In addition to interim Reports, the contracting officer must complete a final Report which covers the last 12 months (or less) of contract performance. (e) The contracting officer shall initiate the process for completing interim Reports within five (5) business days after the end of each 12 months of contract performance. The contracting officer shall initiate the process for completing a final Report within five (5) business days after the end of the last 12 months (or less) of contract performance. Final Reports must be completed prior to contract closeout. (f) The contracting officer must complete interim and final Reports, including the project officer's evaluation of contractor performance, receipt of any contractor input, and resolution of summary ratings (if any) within 90 business days from the date the contracting officer initiates the evaluation. (g) Reports shall be used to inform other agencies and departments (upon request) about a contractor's performance on an EPA contract, and to assist the contracting officer and the Technical Evaluation Panel with evaluating past performance for future EPA acquisitions. (h) When evaluating proposals, contracting officers shall use the National Institutes of Health system to access Reports from other agencies or departments that are available in the National Institutes of Health database. Contracting Officers may need to access past performance information from other than the National Institutes of Health system if the National Institutes of Health system does not include applicable information. (i) In accordance with FAR 42.1503(b), the ultimate conclusion on the performance evaluation is the decision of the Agency. The contracting officer must ensure the accuracy of ratings for each performance category by verifying that information in the contract file corresponds with the project officer's designated ratings. A contractor's performance evaluation should closely parallel award fee determinations made under the contract. (j) In cases of novations involving successors-in-interest, a final evaluation of the predecessor contractor must be completed within five (5) business days after the end of the predecessor contractor's performance, and an interim evaluation of the successor contractor must be completed within five (5) business days after the end of each 12 months of contract performance after the successor began performing. In cases of change-of-name agreements, the system shall be changed to reflect the new contractor's name. (k) Contracting officers must inform the Office of Debarment and Suspension of any repetitive unsatisfactory or poor (a score of 0 or 1) ratings encountered by the contractor. [64 FR 20203, Apr. 26, 1999, as amended at 64 FR 41043, July 29, 1999] 1509.170-6 Filing of forms. The original copy of completed Contractor Performance Reports (interim and final) shall be filed in each individual contractor's official contract file. The National Institutes of Health Contractor Performance System will retain all reports for three (3) years after contract completion. [64 FR 20204, Apr. 26, 1999] 1509.170-7 Release of ratings. (a) Agencies and departments who subscribe to the National Institutes of Health's Contractor Performance System will have direct access to all Reports, including those of EPA, in the National Institutes of Health's database. Information on EPA contractors' performance ratings may also be obtained by contacting the EPA contracting officer responsible for the evaluation. (b) Contractors' performance ratings may be released to other Federal, State, and local Governments upon written request. The release to other Federal, State, and local Governments must stipulate that the information provided shall not be released outside of the requesting Government agency. In cases where the Federal agency is part of the National Institutes of Health Contract Performance System, a written request is not applicable. (c) Freedom of Information Act requests shall be processed by the EPA Freedom of Information Act office where the contract is located. Requests for past performance evaluations during the period the information may be used to provide source selection information shall be rejected if the requests are made by other than the Government personnel and the contractor whose performance is being evaluated. [64 FR 20204, Apr. 26, 1999] 1509.170-8 Contractor Report. Performance (a) Contractor Performance Reports (interim and final) must be prepared electronically by use of the National Institutes of Health's Contractor Performance System. Hard copy preparation of Reports shall not be used unless specifically instructed by the National Institutes of Health. The National Institutes of Health will provide EPA's Office of Acquisition Management Internal Oversight Service Center with specific instructions if hard copy use becomes necessary. (b) A copy of the National Institutes of Health Contractor Performance Report (including instructions) shall be included in each solicitation and contract with an estimated value in excess of $100,000. [64 FR 20204, Apr. 26, 1999] Subpart 1509.4-Debarment, Suspension and Ineligibility SOURCE: 65 FR 37291, June 14, 2000, unless otherwise noted. 1509.403 Definitions. The "Debarring Official" and the "Suspending Official" as defined in FAR 9.403 is a designated individual located in the Office of Grants and Debarment. This Agency official is authorized to make the determinations and provide the notifications required under FAR subpart 9.4 or this subpart, except for the determinations required by FAR 9.405-1(a) which are to be made by the Head of the Contracting Activity. All compelling reason determinations to be made by the Debarring or Suspending Official under FAR subpart 9.4 or this subpart will be made only after coordination and consultation with the Head of the Contracting Activity. See also 40 CFR part 32. 1509.406 Debarment. (ii) Contracting officers shall review "The List of Parties Excluded from Federal Procurement and Nonprocurement Programs" to ensure that the Agency does not solicit offers from, award contracts to, or consent to subcontracts with listed contractors. (2) Chief of the Contracting Office responsibility. When the Chief of the Contracting Office determines that sufficient information is available to indicate that a cause for debarment may exist, such information shall be promptly reported by memorandum to the HCA. The memorandum provides the Chief of the Contracting Office's assessment of the information, any investigative report or audit, and any additional information he/she has discovered. (3) HCA responsibility. Upon receipt of a report of a suspected debarment situation, the HCA shall take the following actions: (i) Notify the Director, Suspension and Debarment Division, that investigation of a potential debarment has been initiated. (ii) Review the reported information. (iii) Investigate as necessary to verify or develop additional information. (iv) Refer the matter through the Suspension and Debarment Division to the Debarring Official for consideration of debarment; request that the Suspension and Debarment Division evaluate the information and, if appropriate, refer the matter to the Debarring Official for consideration of debarment; or recommend to the Suspension and Debarment Division that the matter be closed without further action because the facts do not warrant debarment. (v) Obtain legal counsel's opinion on referrals or recommendations made to the Debarring Official. (vi) Notify EPA Contracting Officers of those Contractors who are ineligible for solicitation, award, or subcontracting but who do not appear on the GSA Consolidated List; e.g., those who are ineligible based on a settlement reached by the Debarring Official under which the Contractor has agreed to |