acceptable is capable of being made acceptable; i.e., would the submission of clarifying data or obtaining additional information make an otherwise unacceptable proposal acceptable? Negotiations will normally proceed similarly to the process described in § 1-4.10052. If it is determined that the highest rated firm cannot furnish the required goods or services, SBA will be notified, and, upon approval by SBA, negotiations will commence with the next highest rated firm. When extensive discussions with all sources fail to result in any acceptable proposals, the contracting officer will notify SBA. If within ten (10) working days, SBA has not notified the contracting officer of any additional sources or any methods of improving the existing source(s), the procuring activity will proceed with the procurement without further regard for the 8(a) procedures, unless additional time is requested by SBA and the additional time is granted by the procuring activity after giving due regard to the urgency of the procurement.

(5)When requested by SBA, the procuring activity shall render all possible assistance to SBA with respect to SBA's negotiation of 8(a) subcontracts. However, SBA will usually delegate negotiation authority to the HHS procuring activity.

(6) Upon receipt of a delegation, the procuring activity will promptly negotiate with the selected 8(a) firm. After the conclusion of negotiations with the selected source, the procuring activity will prepare the contract between the procuring activity and SBA and the subcontract between SBA and the selected source. These documents will be prepared in accordance with § 1-1.713-3(d) and (e), respectively, and forwarded to SBA for signature. Procuring activities shall completely negotiate the 8(a) subcontract and prepare the definitive subcontract documents before submitting the prime contract to SBA for signature.

(7) The contracting officer is responsible for promptly notifying all offerors if an award is to be delayed beyond 30 days from the date of receipt of technical proposals. The contracting officer is also responsible for keeping the offerors informed of the situation

if the delay persists or other problems arise which impede the award.

(c) Debriefing. Unsuccessful offerors shall be promptly notified of the contract award. A debriefing, when requested in writing, shall be provided by the cognizant contracting officer to an 8(a) firm that has been unsuccessful in an 8(a) limited technical competition.

(d) Unacceptable offerors. If it is determined during negotiations that the selected offeror is technically unacceptable, the procuring activity shall promptly notify the SBA. If it appears that an offeror would be unable to earn a profit if awarded the contract, both SBA and OSDBU shall be notified by the contracting officer.

(e) Liaison with the Small Business Administration. (1) Procuring activities will maintain a continuous liaison with the SBA to ensure that the overall goals of each activity are achieved. In the event there is a dispute between the procuring activity and an SBA representative regarding any aspects of 8(a) contracting, the procuring activity must promptly notify the OSDBU.

(2) The business development responsibility of SBA requires them to assist in and monitor the growth and development of all 8(a) firms. Therefore, it is incumbent upon HHS to assist SBA in this effort by utilizing the source selection process in a manner that would make use of the largest possible number of 8(a) firms.

(f) Arriving at contract amount. Contracts will be awarded at prices which are fair and reasonable.

(g) Advance payments. 8(a) firms requesting advance payments should be advised to submit the request to the SBA, in writing, in accordance with SBA operating procedures. SBA is responsible for reviewing and approving requests, and for making funds available, for advance payments under 8(a) contracts.

(h) Contract modifications, inspections, etc. The responsibility for subcontract administration and field inspection will, in most cases, be delegated by SBA to the procuring activity. The procuring activity shall keep SBA apprised of all contract modifications, progress payments, and any other pertinent data requested by SBA.

(i) Subcontract administration. Some firms may need additional management expertise for optimal performance and completion of a particular contract. Therefore, when subcontract administration is delegated to HHS by SBA, the procuring activity shall promptly apprise the SBA, the SADBUS, and OSDBU whenever the contractor is experiencing problems. SBA should provide necessary technical assistance so the contractor can successfully complete the contract.

(j) Contract termination. The OSDBU, SADBUS, and SBA are to be notified prior to initiating final action to terminate an 8(a) contract. (See paragraph (c) of special 8(a) contract conditions prescribed by § 1-1.7133(d).)

The Department of Commerce is responsible for coordinating the participation of Federal civilian agencies in a continuing series of conferences which are sponsored by members of Congress. The objectives of these conferences are:

(a) Location of additional procurement sources to broaden the procurement base of Federal agencies;

(b) Stimulation of local, regional, and national economic growth, national security, and cost reduction;

(c) Location of underutilized production capacity;

(d) Prevention or elimination of pockets of underemployment; and

(e) Assistance of small and disadvantaged business concerns.

As notified by the OSDBU, procuring activities shall provide appropriate SADBUS or procurement personnel to participate in person-to-person counseling at these conferences. Ordinarily, participation by procuring activities will be restricted to conferences held within the geographical areas adjacent to their procurement offices.

The brochure, "How To Do Business With DHHS" (DHHS Publication No. (OS) 75-17) should be of great assistance in this counseling as it has been specifically prepared to assist individuals, firms, and institutions who may wish to do business with this Department. It contains a brief description of

the mission and programs of HHS and its Operating Divisions and provides a listing of procuring offices and the types of services and commodities procured by each.

Subpart 3-1.10-Publicizing Procurement Actions

SOURCE: 43 FR 48998, Oct. 20, 1978, unless otherwise noted.

§ 3-1.1000 Scope of subpart.

This subpart establishes Departmental policy with respect to making solicitations available to interested parties and synopsizing proposed procurements in the Commerce Business Daily.

§ 3-1.1001 General policy.

It is the Department's policy to conduct its procurements in an open fashion, to make procurements known to the public in a timely manner, to foster open and unrestricted competition, and to allow potential bidders and offerors to participate in the procurement process without artificial restrictions.

§ 3-1.1002 Availability of invitations for bids, requests for proposals, and requests for quotations.

(a) Potential offerors/bidders must be allowed a reasonable period of time in which to prepare and submit a response to a solicitation. As a general rule, the response period is to be at least 20 calendar days when procuring standard commercial articles or services, and at least 30 calendar days when procuring other than standard commercial articles or services. The 20 and 30 calendar day response periods begin on the date the solicitation is issued. The response periods are applicable to all formally advertised and negotiated procurements and for small purchases of $5,000 and above, except in cases of unusual emergency.

(b) As indicated in § 1-1.1002, a reasonable number of copies of each solicitation publicized in the Department of Commerce Synopsis, including specifications and other pertinent information, are to be made available by

the issuing office for distribution to requesting parties.

(1) A reasonable number of copies is defined as that number of copies necessary to promptly satisfy all requests received for the first 20 calendar days beginning on the date the solicitation is issued. All requests received during the 20-day periods are to be filled. Requests received after the 20-day periods may be filled on a supply available, first-come, first-served basis. If the supply of solicitations is exhausted after the twentieth day, an interested party requesting a copy should be so notified and advised that a copy of the solicitation is available in the issuing office for viewing.

(2) When response periods of less than 20 days for standard commercial articles or services and less than 30 days for other than standard articles or services are used, all requests received during these shorter than preferred periods are to be promptly filled. If a requestor requires a copy of a solictitation after these periods and the supply is exhausted, the requestor should be so notified.

§ 3-1.1003 Synopses of proposed procurements.

§ 3-1.1003-1 [Reserved]

§ 3-1.1003-2 General requirements.

(a)(1)-(7) [Reserved]

(8) The exemption from the requirement to synopsize in § 1-1.1003-2(a)(8) is applicable only when there is to be a noncompetitive procurement for services from one educational institution. When more than one educational institution is to be solicited, the procurement is required to be synopsized in the Commerce Business Daily.

Subpart 3-1.12-Responsible Prospective Contractors

SOURCE: 37 FR 3353, Feb. 15, 1972, unless otherwise noted.

§ 3-1.1200 Scope of subpart.

This subpart implements the policies set forth in FPR 1-1.12 concerning the responsibility of prospective contractors, minimum standards for responsible prospective contractors, require

ments and procedures for the determination of responsibility, and policies regarding the determination of subcontractor responsibility.

§ 3-1.1203 Minimum standards for responsible prospective contractors.

§ 3-1.1203-2 Additional standards.

In addition to the standards set forth in FPR 1-1.1203-1 and -2, a prospective contractor, in order to be determined as responsible must, in the opinion of the contracting officer, meet the following standards as they relate to the particular procurement under consideration.

(a) Have an established system of accounting and financial controls which are determined by the contracting officer to be adequate to permit the effective administration of the type of contract proposed, particularly if under its terms the costs incurred are a factor in determining the amount payable under the contract, or if advance or progress payments are requested.

(b) In determining the adequacy of a prospective contractor's financial resources for the performance of the proposed contract, as required by FPR 1-1.1203-1(a), particular attention shall be given to the ability of the contractor to discharge his full financial responsibility for charges and losses of Government-furnished material, when the contractor has responsibility for such material.

§ 3-1.1204 Determination of responsibility or nonresponsibility.

§ 3-1.1204-1 Requirement.

(a) The signing of the contract shall be deemed to be evidence of the contracting officer's affirmative determination that a contractor is responsible within the meaning of FPR 1-1.1202. In the event that a contracting officer determines a prospective contractor to be nonresponsible within the meaning of FPR 1-1.1202, a written determination to this effect shall be made by the contracting officer and placed in the contract file. (See FPR 1-1.708 and HHSPR 3-1.708-2 if a small business concern is involved.)

Subpart 3-1.16-Reports of Identical

Bids

§ 3-1.1603 Reporting requirements. [35 FR 19752, Dec. 30, 1970]

§ 3-1.1603-3 Submission of reports.

(a) In order to ensure expeditious submission, contracting officers shall forward reports required by § 1-1.1603 directly to the Attorney General, Ref. AT-IBR, Washington, D.C. 20530.

(b) A copy of each identical bid report shall be submitted promptly to the Division of Procurement and Materiel Management, OASA-OGS. [35 FR 19752, Dec. 30, 1970]

Subpart 3-1.52-Safety and Health

SOURCE: 35 FR 16921, Nov. 3, 1970, unless otherwise noted.

§ 3-1.5200 Scope of subpart.

This subpart prescribes (a) the use of a safety and health clause in contracts involving hazardous materials or operations, and (b) procedures for developing and administering safety and health provisions.

§ 3-1.5201 General.

Various statutes and regulations (e.g., Walsh-Healey Act; Service Contract Act) require adherence to minimum safety and health standards by contractors engaged in potentially hazardous work. Positive action to reduce accidents and conditions hazardous to health under all contracts is in the Government's interest since the cost of such accident and health hazards is borne by the Government through higher prices and sometimes by direct indemnification of contractors against liability claims.

§ 3-1.5202 Definition.

Hazardous materials or operations are those which have the potential of producing adverse environmental conditions, such as, fire, heat, acoustics, toxicity, radiation, light, acids, biologicals, etc.

§ 3-1.5203 Policy.

Whenever the performance of a contract will require use of hazardous materials or operations, the procuring activity shall require the prime contractor and subcontractors to:

(a) Provide protection for the life and health of HHS employees, contractor employees, other persons involved with work on HHS programs and projects, and the public;

(b) Avoid accidental work interruptions which could delay progress of HHS programs and projects;

(c) Maintain controls for the prevention of damage and loss to property; and

(d) Accumulate and provide data necessary for analysis of risk and loss factors relating to HHS programs and projects.

§ 3-1.5204 Actions required.

(a) Procuring activities. Procuring activities shall use the example set forth in § 3-1.5205(b) as a guide in developing appropriate safety and health clauses for use in prospective contracts involving the following:

(1) Services or products;

(2) Research, development, or test projects;

(3) Transportation of hazardous materials; and

(4) Construction, including construction of facilities on contractor's premises.

(b) Safety officers. Safety officers of operating agencies shall advise and assist initiators of procurement requests and contracting officers in:

(1) Determining whether safety and health provisions should be included in a prospective contract;

(2) Selecting or developing safety and health clause provisions for incorporation in a prospective contract;

(3) Evaluating prospective contractor's safety and health programs; and

(4) Conducting post award review and surveillance to the extent deemed necessary.

(c) Initiators. Initiators of procurement requests for items described in paragraph (a) of this section shall:

(1) During the preparation of a request for procurement:

§ 3-1.5303

Distinction between procurement and assistance.

(a) The Federal Grant and Cooperative Agreement Act of 1977 requires the use of contracts to acquire property or services for the direct benefit or use of the Government and grants or cooperative agreements to transfer money, property, services, or anything of value to recipients to accomplish a public purpose of support or stimulation authorized by Federal statute.

(b) A contract is to be used as the legal instrument to reflect a relationship between the Federal Government and a recipient whenever:

(1) The principal purpose of the instrument is the acquisition, by purchase, lease, or barter, of property or services for the direct benefit or use of the Federal Government; or

(2) The Department determines in a specific instance that the use of a type of contract is appropriate. That is, it is determined in a certain situation that specific needs can be satisfied best by using the procurement process. However, this authority does not permit circumventing the criteria for use of procurement or assistance instruments. Use of this authority is restricted to extraordinary circumstances and only with the prior approval of the Deputy Assistant Secretary for Grants and Procurement.

(c) A grant or cooperative agreement is to be used as the legal instrument to reflect a relationship between the Federal Government and a recipient whenever the principal purpose of the relationship is the transfer of money, property, services, or anything of value to the recipient to accomplish a