HomeMy Public PortalAbout15-8946 Issue a RFQ to Provide Debris Monitoring ServicesSponsored by: City Manager
RESOLUTION NO. 15-8946
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF OPA LOCKA, FLORIDA, DIRECTING THE CITY
MANAGER TO ISSUE A REQUEST FOR QUALIFICATIONS
TO PROVIDE DEBRIS MONITORING SERVICES;
PROVIDING FOR INCORPORATION OF RECITALS;
PROVIDING FOR AN EFFECTIVE DATE
WHEREAS, the City of Opa -locka requires the services of a Debris
Monitoring Company; and
WHEREAS, these services are needed to comply with FEMA guidelines; and
WHEREAS, the Debris Monitoring Company may not be affiliated with the
City of Opa- locka's Debris Removal Vendor.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY
COMMISSION OF THE CITY OF OPA LOCKA, FLORIDA:
Section 1. The recitals to the preamble herein are incorporated by reference.
Section 2. The City Commission hereby directs the City Manager to issue an
RFQ to qualified firms to provide Debris Monitoring Services under a one year
contract with the City's option for two one year extensions.
Section 3. This Resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this 11th day o:
Mayor
Resolution No. 15 -8946
Attest to:
janna Flores
City Clerk
Approved as to form and legal sufficiency:
Moved by: COMMISSIONER KELLEY
Seconded by: COMMISSIONER PINDER
Commissioner Vote: 4 -0
Commissioner Kelley: YES
Commissioner Pinder: YES
Commissioner Santiago: YES
Vice Mayor Holmes: NOT PRESENT
Mayor Taylor: YES
City of Opa -Locka
Agenda Cover Memo
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Commission Meeting
Date:
03/11/2015
Item Type:
(EnterX in box)
ResohFfion
Ordinance
Other
X
Fiscal Impact:
(EnterX in box)
Yes
No
Ordinance Reading:
(EnterX in box)
1-t Reading
2" Reading
X
Public Hearing:
(EnterX in box)
Yes
No
Yes
No
Funding Source:
(Enter AcctNo.)
(Enter Fund & Dept)
FEMA
Advertising Requirement:
(EnterX in box)
Yes
No
Contract /P.O. Required:
(EnterX in box)
Yes
No
RFP /RFQ /Bid #:
N/A
Strategic Plan Related
(Enter X in box)
Yes
No
Strategic Plan Priority Area:
Enhance Organizational p
Bus. & Economic Dev E-1
Public Safety
Quality of Education
Qual. of Life & City Image p
Communcation
Strategic Plan Obj. /Strategy: (hst the
specific objective /strategy this item will address)
Sponsor Name
City Manager
Department:
City Manager
A RESOLUTION OF THE CITY OF OPA- LOCKA, FLORIDA AUTHORIZING THE CITY MANAGER TO ADVERTISE A
REQUEST FOR PROPOSALS FOR DEBRIS MONITORING SERVICES
Staff Summary:
Debris removal and monitoring contracts must meet the rules of Federal grants as provided for in Title 44 Code of
Federal Regulations (CRF) Section 13.36, procurement. Among other things, this section states the debris
monitoring contracts must be competitively procured.
Proposed Action:
Staff recommends approval.
Attachment
(1) FEMA contracting guidance on debris monitoring contracts
(2) 44 CFR Section 13.36, Procurement
Q '
Memorandum
TO: Mayor
Vice -Mayor
Commissioner
Commissioner
Commissioner
FROM: Kelvin Baker, Sr., City
DATE: February 27, 2015
Myra L. Taylor
Joseph jq Kelley
L
RE: Resolution: RFP — Debris Monitoring
Request: A RESOLUTION OF THE CITY OF OPA- LOCKA, FLORIDA AUTHORIZING
THE CITY MANAGER TO ADVERTISE A REQUEST FOR PROPOSALS FOR
DEBRIS MONITORING SERVICES
Description: Debris removal and monitoring contracts must meet the rules of Federal grants as
provided for in Title 44 Code of Federal Regulations (CRF) Section 13.36, procurement.
Among other things, this section states the debris monitoring contracts must be
competitively procured.
Financial Impact: Zero, debris monitoring contracts are 100% refundable by FEMA
Implementation Timeline: Immediately
Legislative History: n/a
Recommendation(s): Staff recommends approval.
Analysis: We will be seeking the services of one or more qualified firms to support and assist the
City in its emergency debris management and planning by monitoring the field operations regarding all
storm generated debris; debris pickup, debris hauling, debris staging and reduction, temporary debris
storage site management, debris management, and final disposal of debris to an approved facility in
order to eliminate immediate threats to life, public health and safety, and assist in the economic
recovery to the City in the event of a natural or man -made catastrophe.
Any contract awarded under this RFP will be a contingency contract that will be activated only in the
event of an emergency. As such, no compensation will accrue to the subsequent contract awardee(s)
unless and until the contract is activated either in anticipation of a natural disaster or immediately after
such disaster. Based on the proposals received, the City shall have the right to award contracts to
multiple Contractors when deemed it is in the best interest f the City to do so.
It is imperative that the City of Opa -locka be prepared to provide all necessary disaster recovery
services and have the means to recover all eligible costs from State and Federal Agencies that have
funds to assist local governments to cope with all natural and manmade disasters.
Attachments: (1) FEMA contracting guidance on debris monitoring contracts
(2) 44 CFR Section 13.36, Procurement
PREPARED BY: Faye Douglas, Budget Administrator
DEBRIS CONTRACTING GUIDANCE
❑ A requirement that contractors must obtain adequate payment and performance bonds and insurance
coverage.
Applicants must monitor all debris removal operations. Applicants must document all eligible
debris removal expenses as a condition of receiving Public Assistance funding. Applicants may use
contractors to monitor their debris removal operations. In addition to the guidance provided above,
applicants should consider the following when procuring debris monitoring contracts:
❑ Debris monitoring contracts must be competitively procured as required by 44 CFR S 13.36,
Procurement.
❑ Debris monitors should not be employed by or affiliated with the debris removal contractor.
❑ Debris monitoring contracts are typically time and materials contracts and must contain a not -to-
exceed clause, pursuant to 44 CFR § 13.36, Procurement.
❑ The contract should include a requirement that the contractor provide a safe working environment,
including properly constructed monitoring towers.
❑ Use of a load ticket system to record with specificity (e.g., street address, GPS coordinates) where
debris is collected and the amount picked up, hauled, reduced, and disposed of.
❑ Debris monitors should be trained and possess skills adequate to fulfill the duties of the job.
Labor rates should be commensurate with the skill level required by the job function. Professional
engineers and qualifications are not required to perform monitoring duties.
❑ The contractor should demonstrate that its staff is familiar with FE-MA debris removal eligibility
criteria.
❑ DO NOT: Award a debris removal or debris monitoring contract on a sole - source basis.
❑ DO NOT: Sign a contract (including one provided by a contractor) until your legal representative
has thoroughly reviewed it.
❑ DO NOT: Allow any contractor to make eligibility determinations; only FEMA has authority to
make final eligibility determinations.
[Prepared $c: Pubfic Assi Eaance Division Pa = of
Federal Emergency Management Agency, DHS
the current market value or proceeds
from sale by the awarding agency's
share of the equipment.
(3) In cases where a grantee or sub -
grantee fails to take appropriate dis-
position actions, the awarding agency
may direct the grantee or subgrantee
to take excess and disposition actions.
(f) Federal equipment. In the event a
grantee or subgrantee is provided fed-
erally -owned equipment:
(1) Title will remain vested in the
Federal Government.
(2) Grantees or subgrantees will man-
age the equipment in accordance with
Federal agency rules and procedures,
and submit an annual inventory list-
ing.
(3) When the equipment is no longer
needed, the grantee or subgrantee will
request disposition instructions from
the Federal agency.
(g) Right to transfer title. The Federal
awarding agency may reserve the right
to transfer title to the Federal Govern-
ment or a third part named by the
awarding agency when such a third
party is otherwise eligible under exist-
ing statutes. Such transfers shall be
subject to the following standards:
(1) The property shall be identified in
the grant or otherwise made known to
the grantee in writing.
(2) The Federal awarding agency
shall issue disposition instruction
within 120 calendar days after the end
of the Federal support of the project
for which it was acquired. If the Fed-
eral awarding agency fails to issue dis-
position instructions within the 120
calendar -day period the grantee shall
follow § 13.32(e).
(3) When title to equipment is trans-
ferred, the grantee shall be paid an
amount calculated by applying the per-
centage of participation in the pur-
chase to the current fair market value
of the property.
§ 13.33 Supplies.
(a) Title. Title to supplies acquired
under a grant or subgrant will vest,
upon acquisition, in the grantee or sub -
grantee respectively.
(b) Disposition. If there is a residual
inventory of unused supplies exceeding
$5,000 in total aggregate fair market
value upon termination or completion
of the award, and if the supplies are
§ 13.36
not needed for any other federally
sponsored programs or projects, the
grantee or subgrantee shall com-
pensate the awarding agency for its
share.
§ 13.34 Copyrights.
The Federal awarding agency re-
serves a royalty -free, nonexclusive, and
irrevocable license to reproduce, pub-
lish or otherwise use, and to authorize
others to use, for Federal Government
purposes:
(a) The copyright in any work devel-
oped under a grant, subgrant, or con-
tract under a grant or subgrant; and
(b) Any rights of copyright to which
a grantee, subgrantee or a contractor
purchases ownership with grant sup-
port.
§ 13.35 Subawards to debarred and
suspended parties.
Grantees and subgrantees must not
make any award or permit any award
(subgrant or contract) at any tier to
any party which is debarred or sus-
pended or is otherwise excluded from or
ineligible for participation in Federal
assistance programs under Executive
Order 12549, "Debarment and Suspen-
sion."
§ 13.36 Procurement.
(a) States. When procuring property
and services under a grant, a State will
follow the same policies and procedures
it uses for procurements from its non -
Federal funds. The State will ensure
that every purchase order or other con-
tract includes any clauses required by
Federal statutes and executive orders
and their implementing regulations.
Other grantees and subgrantees will
follow paragraphs (b) through (i) in
this section.
(b) Procurement standards. (1) Grant-
ees and subgrantees will use their own
procurement procedures which reflect
applicable State and local laws and
regulations, provided that the procure-
ments conform to applicable Federal
law and the standards identified in this
section.
(2) Grantees and subgrantees will
maintain a contract administration
system which ensures that contractors
perform in accordance with the terms,
131
Federal Emergency Management Agency, DHS
that of the grantee or subgrantee un-
less the matter is primarily a Federal
concern. Violations of law will be re-
ferred to the local, State, or Federal
authority having proper jurisdiction.
(12) Grantees and subgrantees will
have protest procedures to handle and
resolve disputes relating to their pro-
curements and shall in all instances
disclose information regarding the pro-
test to the awarding agency. A
protestor must exhaust all administra-
tive remedies with the grantee and sub -
grantee before pursuing a protest with
the Federal agency. Reviews of pro-
tests by the Federal agency will be lim-
ited to:
(i) Violations of Federal law or regu-
lations and the standards of this sec-
tion (violations of State or local law
will be under the jurisdiction of State
or local authorities) and
(ii) Violations of the grantee's or sub -
grantee's protest procedures for failure
to review a complaint or protest. Pro-
tests received by the Federal agency
other than those specified above will be
referred to the grantee or subgrantee.
(c) Competition. (1) All procurement
transactions will be conducted in a
manner providing full and open com-
petition consistent with the standards
of section 13.36. Some of the situations
considered to be restrictive of competi-
tion include but are not limited to:
(i) Placing unreasonable require-
ments on firms in order for them to
qualify to do business,
(ii) Requiring unnecessary experience
and excessive bonding,
(iii) Noncompetitive pricing practices
between firms or between affiliated
companies,
(iv) Noncompetitive awards to con-
sultants that are on retainer contracts,
(v) Organizational conflicts of inter-
est,
(vi) Specifying only a "brand name"
product instead of allowing "an equal"
product to be offered and describing
the performance of other relevant re-
quirements of the procurement, and
(vii) Any arbitrary action in the pro-
curement process.
(2) Grantees and subgrantees will
conduct procurements in a manner
that prohibits the use of statutorily or
administratively imposed in -State or
local geographical preferences in the
§ 13.36
evaluation of bids or proposals, except
in those cases where applicable Federal
statutes expressly mandate or encour-
age geographic preference. Nothing in
this section preempts State licensing
laws. When contracting for architec-
tural and engineering (A/E) services,
geographic location may be a selection
criteria provided its application leaves
an appropriate number of qualified
firms, given the nature and size of the
project, to compete for the contract.
(3) Grantees will have written selec-
tion procedures for procurement trans-
actions. These procedures will ensure
that all solicitations:
(i) Incorporate a clear and accurate
description of the technical require-
ments for the material, product, or
service to be procured. Such descrip-
tion shall not, in competitive procure-
ments, contain features which unduly
restrict competition. The description
may include a statement of the quali-
tative nature of the material, product
or service to be procured, and when
necessary, shall set forth those min-
imum essential characteristics and
standards to which it must conform if
it is to satisfy its intended use. De-
tailed product specifications should be
avoided if at all possible. When it is
impractical or uneconomical to make a
clear and accurate description of the
technical requirements, a "brand name
or equal" description may be used as a
means to define the performance or
other salient requirements of a pro-
curement. The specific features of the
named brand which must be met by
offerors shall be clearly stated; and
(ii) Identify all requirements which
the offerors must fulfill and all other
factors to be used in evaluating bids or
proposals.
(4) Grantees and subgrantees will en-
sure that all prequalified lists of per-
sons, firms, or products which are used
in acquiring goods and services are cur-
rent and include enough qualified
sources to ensure maximum open and
free competition. Also, grantees and
subgrantees will not preclude potential
bidders from qualifying during the so-
licitation period.
(d) Methods of procurement to be fol-
lowed—(1) Procurement by small purchase
procedures. Small purchase procedures
133
§ 13.36
conditions, and specifications of their
contracts or purchase orders.
(3) Grantees and subgrantees will
maintain a written code of standards of
conduct governing the performance of
their employees engaged in the award
and administration of contracts. No
employee, officer or agent of the grant-
ee or subgrantee shall participate in se-
lection, or in the award or administra-
tion of a contract supported by Federal
funds if a conflict of interest, real or
apparent, would be involved. Such a
conflict would arise when:
(i) The employee, officer or agent,
(ii) Any member of his immediate
family,
(iii) His or her partner, or
(iv) An organization which employs,
or is about to employ, any of the
above, has a financial or other interest
in the firm selected for award. The
grantee's or subgrantee's officers, em-
ployees or agents will neither solicit
nor accept gratuities, favors or any-
thing of monetary value from contrac-
tors, potential contractors, or parties
to subagreements. Grantee and sub -
grantees may set minimum rules where
the financial interest is not substantial
or the gift is an unsolicited item of
nominal intrinsic value. To the extent
permitted by State or local law or reg-
ulations, such standards or conduct
will provide for penalties, sanctions, or
other disciplinary actions for viola-
tions of such standards by the grant-
ee's and subgrantee's officers, employ-
ees, or agents, or by contractors or
their agents. The awarding agency may
in regulation provide additional prohi-
bitions relative to real, apparent, or
potential conflicts of interest.
(4) Grantee and subgrantee proce-
dures will provide for a review of pro-
posed procurements to avoid purchase
of unnecessary or duplicative items.
Consideration should be given to con-
solidating or breaking out procure-
ments to obtain a more economical
purchase. Where appropriate, an anal-
ysis will be made of lease versus pur-
chase alternatives, and any other ap-
propriate analysis to determine the
most economical approach.
(5) To foster greater economy and ef-
ficiency, grantees and subgrantees are
encouraged to enter into State and
local intergovernmental agreements
44 CFR Ch. 1 (10 -1 -10 Edition)
for procurement or use of common
goods and services.
(6) Grantees and subgrantees are en-
couraged to use Federal excess and sur-
plus property in lieu of purchasing new
equipment and property whenever such
use is feasible and reduces project
costs.
(7) Grantees and subgrantees are en-
couraged to use value engineering
clauses in contracts for construction
projects of sufficient size to offer rea-
sonable opportunities for cost reduc-
tions. Value engineering is a system-
atic and creative analysis of each con-
tract item or task to ensure that its es-
sential function is provided at the
overall lower cost.
(8) Grantees and subgrantees will
make awards only to responsible con-
tractors possessing the ability to per-
form successfully under the terms and
conditions of a proposed procurement.
Consideration will be given to such
matters as contractor integrity, com-
pliance with public policy, record of
past performance, and financial and
technical resources.
(9) Grantees and subgrantees will
maintain records sufficient to detail
the significant history of a procure-
ment. These records will include, but
are not necessarily limited to the fol-
lowing: rationale for the method of
procurement, selection of contract
type, contractor selection or rejection,
and the basis for the contract price.
(10) Grantees and subgrantees will
use time and material type contracts
only -
(i) After a determination that no
other contract is suitable, and
(ii) If the contract includes a ceiling
price that the contractor exceeds at its
own risk.
(11) Grantees and subgrantees alone
will be responsible, in accordance with
good administrative practice and sound
business judgment, for the settlement
of all contractual and administrative
issues arising out of procurements.
These issues include, but are not lim-
ited to source evaluation, protests, dis-
putes, and claims. These standards do
not relieve the grantee or subgrantee
of any contractual responsibilities
under its contracts. Federal agencies
will not substitute their judgment for
132
Federal Emergency Management Agency, DHS
or competitive proposals and one of the
following circumstances applies:
(A) The item is available only from a
single source;
(B) The public exigency or emergency
for the requirement will not permit a
delay resulting from competitive solic-
itation;
(C) The awarding agency authorizes
noncompetitive proposals; or
(D) After solicitation of a number of
sources, competition is determined in-
adequate.
(ii) Cost analysis, i.e., verifying the
proposed cost data, the projections of
the data, and the evaluation of the spe-
cific elements of costs and profits, is
required.
(iii) Grantees and subgrantees may
be required to submit the proposed pro-
curement to the awarding agency for
pre -award review in accordance with
paragraph (g) of this section.
(e) Contracting with small and minority
,firms, women's business enterprise and
labor surplus area firms. (1) The grantee
and subgrantee will take all necessary
affirmative steps to assure that minor-
ity firms, women's business enter-
prises, and labor surplus area firms are
used when possible.
(2) Affirmative steps shall include:
(i) Placing qualified small and minor-
ity businesses and women's business
enterprises on solicitation lists;
(ii) Assuring that small and minority
businesses, and women's business en-
terprises are solicited whenever they
are potential sources;
(iii) Dividing total requirements,
when economically feasible, into small-
er tasks or quantities to permit max-
imum participation by small and mi-
nority business, and women's business
enterprises;
(iv) Establishing delivery schedules,
where the requirement permits, which
encourage participation by small and
minority business, and women's busi-
ness enterprises;
(v) Using the services and assistance
of the Small Business Administration,
and the Minority Business Develop-
ment Agency of the Department of
Commerce; and
(vi) Requiring the prime contractor,
if subcontracts are to be let, to take
the affirmative steps listed in para-
§ 13.36
graphs (e)(2) (i) through (v) of this sec-
tion.
(f) Contract cost and price. (1) Grant-
ees and subgrantees must perform a
cost or price analysis in connection
with every procurement action includ-
ing contract modifications. The meth-
od and degree of analysis is dependent
on the facts surrounding the particular
procurement situation, but as a start-
ing point, grantees must make inde-
pendent estimates before receiving bids
or proposals. A cost analysis must be
performed when the offeror is required
to submit the elements of his esti-
mated cost, e.g., under professional,
consulting, and architectural engineer-
ing services contracts. A cost analysis
will be necessary when adequate price
competition is lacking, and for sole
source procurements, including con-
tract modifications or change orders,
unless price resonableness can be es-
tablished on the basis of a catalog or
market price of a commercial product
sold in substantial quantities to the
general public or based on prices set by
law or regulation. A price analysis will
be used in all other instances to deter-
mine the reasonableness of the pro-
posed contract price.
(2) Grantees and subgrantees will ne-
gotiate profit as a separate element of
the price for each contract in which
there is no price competition and in all
cases where cost analysis is performed.
To establish a fair and reasonable prof-
it, consideration will be given to the
complexity of the work to be per-
formed, the risk borne by the con-
tractor, the contractor's investment,
the amount of subcontracting, the
quality of its record of past perform-
ance, and industry profit rates in the
surrounding geographical area for
similar work.
(3) Costs or prices based on estimated
costs for contracts under grants will be
allowable only to the extent that costs
incurred or cost estimates included in
negotiated prices are consistent with
Federal cost principles (see § 13.22).
Grantees may reference their own cost
principles that comply with the appli-
cable Federal cost principles.
(4) The cost plus a percentage of cost
and percentage of construction cost
methods of contracting shall not be
used.
135
§ 13.36
are those relatively simple and infor-
mal procurement methods for securing
services, supplies, or other property
that do not cost more than the sim-
plified acquisition threshold fixed at 41
U.S.C. 403(11) (currently set at $100,000).
If small purchase procedures are used,
price or rate quotations shall be ob-
tained from an adequate number of
qualified sources.
(2) Procurement by sealed bids (for-
mal advertising). Bids are publicly so-
licited and a firm - fixed -price contract
(lump sum or unit price) is awarded to
the responsible bidder whose bid, con-
forming with all the material terms
and conditions of the invitation for
bids, is the lowest in price. The sealed
bid method is the preferred method for
procuring construction, if the condi-
tions in § 13.36(d)(2)(i) apply.
(i) In order for sealed bidding to be
feasible, the following conditions
should be present:
(A) A complete, adequate, and real-
istic specification or purchase descrip-
tion is available;
(B) Two or more responsible bidders
are willing and able to compete effec-
tively and for the business; and
(C) The procurement lends itself to a
firm fixed price contract and the selec-
tion of the successful bidder can be
made principally on the basis of price.
(ii) If sealed bids are used, the fol-
lowing requirements apply:
(A) The invitation for bids will be
publicly advertised and bids shall be
solicited from an adequate number of
known suppliers, providing them suffi-
cient time prior to the date set for
opening the bids;
(B) The invitation for bids, which
will include any specifications and per-
tinent attachments, shall define the
items or services in order for the bidder
to properly respond;
(C) All bids will be publicly opened at
the time and place prescribed in the in-
vitation for bids;
(D) A firm fixed -price contract award
will be made in writing to the lowest
responsive and responsible bidder.
Where specified in bidding documents,
factors such as discounts, transpor-
tation cost, and life cycle costs shall be
considered in determining which bid is
lowest. Payment discounts will only be
used to determine the low bid when
44 CFR Ch. 1 (10 -1 -10 Edition)
prior experience indicates that such
discounts are usually taken advantage
of, and
(E) Any or all bids may be rejected if
there is a sound documented reason.
(3) Procurement by competitive pro-
posals. The technique of competitive
proposals is normally conducted with
more than one source submitting an
offer, and either a fixed -price or cost -
reimbursement type contract is award-
ed. It is generally used when conditions
are not appropriate for the use of
sealed bids. If this method is used, the
following requirements apply:
(i) Requests for proposals will be pub-
licized and identify all evaluation fac-
tors and their relative importance. Any
response to publicized requests for pro-
posals shall be honored to the max-
imum extent practical;
(ii) Proposals will be solicited from
an adequate number of qualified
sources;
(iii) Grantees and subgrantees will
have a method for conducting tech-
nical evaluations of the proposals re-
ceived and for selecting awardees;
(iv) Awards will be made to the re-
sponsible firm whose proposal is most
advantageous to the program, with
price and other factors considered; and
(v) Grantees and subgrantees may
use competitive proposal procedures
for qualifications -based procurement of
architectural/engineering (A/E) profes-
sional services whereby competitors'
qualifications are evaluated and the
most qualified competitor is selected,
subject to negotiation of fair and rea-
sonable compensation. The method,
where price is not used as a selection
factor, can only be used in procure-
ment of A/E professional services. It
cannot be used to purchase other types
of services though A/E firms are a po-
tential source to perform the proposed
effort.
(4) Procurement by noncompetitive
proposals is procurement through solic-
itation of a proposal from only one
source, or after solicitation of a num-
ber of sources, competition is deter -
mined inadequate.
(i) Procurement by noncompetitive
proposals may be used only when the
award of a contract is infeasible under
small purchase procedures, sealed bids
134
§ 13.36
(g) Awarding agency review. (1) Grant-
ees and subgrantees must make avail-
able, upon request of the awarding
agency, technical specifications on pro-
posed procurements where the award-
ing agency believes such review is
needed to ensure that the item and/or
service specified is the one being pro-
posed for purchase. This review gen-
erally will take place prior to the time
the specification is incorporated into a
solicitation document. However, if the
grantee or subgrantee desires to have
the review accomplished after a solici-
tation has been developed, the award-
ing agency may still review the speci-
fications, with such review usually lim-
ited to the technical aspects of the pro-
posed purchase.
(2) Grantees and subgrantees must on
request make available for awarding
agency pre -award review procurement
documents, such as requests for pro-
posals or invitations for bids, inde-
pendent cost estimates, etc. when:
(i) A grantee's or subgrantee's pro-
curement procedures or operation fails
to comply with the procurement stand-
ards in this section; or
(ii) The procurement is expected to
exceed the simplified acquisition
threshold and is to be awarded without
competition or only one bid or offer is
received in response to a solicitation;
or
(iii) The procurement, which is ex-
pected to exceed the simplified acquisi-
tion threshold, specifies a "brand
name" product; or
(iv) The proposed award is more than
the simplified acquisition threshold
and is to be awarded to other than the
apparent low bidder under a sealed bid
procurement; or
(v) A proposed contract modification
changes the scope of a contract or in-
creases the contract amount by more
than the simplified acquisition thresh-
old.
(3) A grantee or subgrantee will be
exempt from the pre -award review in
paragraph (g)(2) of this section if the
awarding agency determines that its
procurement systems comply with the
standards of this section.
(i) A grantee or subgrantee may re-
quest that its procurement system be
reviewed by the awarding agency to de-
termine whether its system meets
44 CFR Ch. 1 (10 -1 -10 Edition)
these standards in order for its system
to be certified. Generally, these re-
views shall occur where there is a con-
tinuous high - dollar funding, and third -
party contracts are awarded on a reg-
ular basis.
(ii) A grantee or subgrantee may self -
certify its procurement system. Such
self - certification shall not limit the
awarding agency's right to survey the
system. Under a self- certification pro-
cedure, awarding agencies may wish to
rely on written assurances from the
grantee or subgrantee that it is com-
plying with these standards. A grantee
or subgrantee will cite specific proce-
dures, regulations, standards, etc., as
being in compliance with these require-
ments and have its system available
for review.
(h) Bonding requirements. For con-
struction or facility improvement con-
tracts or subcontracts exceeding the
simplified acquisition threshold, the
awarding agency may accept the bond-
ing policy and requirements of the
grantee or subgrantee provided the
awarding agency has made a deter-
mination that the awarding agency's
interest is adequately protected. If
such a determination has not been
made, the minimum requirements shall
be as follows:
(1) A bid guarantee from each bidder
equivalent to five percent of the bid price.
The "bid guarantee" shall consist of a
firm commitment such as a bid bond,
certified check, or other negotiable in-
strument accompanying a bid as assur-
ance that the bidder will, upon accept-
ance of his bid, execute such contrac-
tual documents as may be required
within the time specified.
(2) A performance bond on the part of
the contractor for 100 percent of the con-
tract price. A "performance bond" is
one executed in connection with a con-
tract to secure fulfillment of all the
contractor's obligations under such
contract.
(3) A payment bond on the part of the
contractor for 100 percent of the contract
price. A "payment bond" is one exe-
cuted in connection with a contract to
assure payment as required by law of
all persons supplying labor and mate-
rial in the execution of the work pro-
vided for in the contract.
136
Federal Emergency Management Agency, DHS
(i) Contract provisions. A grantee's
and subgrantee's contracts must con-
tain provisions in paragraph (i) of this
section. Federal agencies are permitted
to require changes, remedies, changed
conditions, access and records reten-
tion, suspension of work, and other
clauses approved by the Office of Fed-
eral Procurement Policy.
(1) Administrative, contractual, or
legal remedies in instances where con-
tractors violate or breach contract
terms, and provide for such sanctions
and penalties as may be appropriate.
(Contracts more than the simplified ac-
quisition threshold)
(2) Termination for cause and for
convenience by the grantee or sub -
grantee including the manner by which
it will be effected and the basis for set-
tlement. (All contracts in excess of
$10,000)
(3) Compliance with Executive Order
11246 of September 24, 1965, entitled
"Equal Employment Opportunity," as
amended by Executive Order 11375 of
October 13, 1967, and as supplemented
in Department of Labor regulations (41
CFR chapter 60). (All construction con-
tracts awarded in excess of $10,000 by
grantees and their contractors or sub -
grantees)
(4) Compliance with the Copeland
"Anti- Kickback" Act (18 U.S.C. 874) as
supplemented in Department of Labor
regulations (29 CFR Part 3). (All con-
tracts and subgrants for construction
or repair)
(5) Compliance with the Davis -Bacon
Act (40 U.S.C. 276a to 276a -7) as supple-
mented by Department of Labor regu-
lations (29 CFR part 5). (Construction
contracts in excess of $2000 awarded by
grantees and subgrantees when re-
quired by Federal grant program legis-
lation)
(6) Compliance with Sections 103 and
107 of the Contract Work Hours and
Safety Standards Act (40 U.S.C. 327 -330)
as supplemented by Department of
Labor regulations (29 CFR Part 5).
(Construction contracts awarded by
grantees and subgrantees in excess of
$2000, and in excess of $2500 for other
contracts which involve the employ-
ment of mechanics or laborers)
(7) Notice of awarding agency re-
quirements and regulations pertaining
to reporting.
§ 13.37
(8) Notice of awarding agency re-
quirements and regulations pertaining
to patent rights with respect to any
discovery or invention which arises or
is developed in the course of or under
such contract.
(9) Awarding agency requirements
and regulations pertaining to copy-
rights and rights in data.
(10) Access by the grantee, the sub -
grantee, the Federal grantor agency,
the Comptroller General of the United
States, or any of their duly authorized
representatives to any books, docu-
ments, papers, and records of the con-
tractor which are directly pertinent to
that specific contract for the purpose
of making audit, examination, ex-
cerpts, and transcriptions.
(11) Retention of all required records
for three years after grantees or sub -
grantees make final payments and all
other pending matters are closed.
(12) Compliance with all applicable
standards, orders, or requirements
issued under section 306 of the Clean
Air Act (42 U.S.C. 1857(h)), section 508
of the Clean Water Act (33 U.S.C. 1368),
Executive Order 11738, and Environ-
mental Protection Agency regulations
(40 CFR part 15). (Contracts, sub-
contracts, and subgrants of amounts in
excess of $100,000)
(13) Mandatory standards and policies
relating to energy efficiency which are
contained in the state energy conserva-
tion plan issued in compliance with the
Energy Policy and Conservation Act
(Pub. L. 94 -163, 89 Stat. 871).
[53 FR 8078, 8087, Max. 11, 1988, as amended at
60 FR 19639, 19645, Apr. 19, 1995]
§ 13.37 Subgrants.
(a) States. States shall follow state
law and procedures when awarding and
administering subgrants (whether on a
cost reimbursement or fixed amount
basis) of financial assistance to local
and Indian tribal governments. States
shall:
(1) Ensure that every subgrant in-
cludes any clauses required by Federal
statute and executive orders and their
implementing regulations;
(2) Ensure that subgrantees are
aware of requirements imposed upon
them by Federal statute and regula-
tion;
137