[Code of Federal Regulations]
[Title 34, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 34CFR74.44]

[Page 120-121]
 
                           TITLE 34--EDUCATION
 
PART 74--ADMINISTRATION OF GRANTS AND AGREEMENTS WITH INSTITUTIONS OF 
HIGHER EDUCATION, HOSPITALS, AND OTHER NON-PROFIT ORGANIZATIONS--Table of 
Contents
 
                   Subpart C--Post-Award Requirements
 
Sec. 74.44  Procurement procedures.

    (a) All recipients shall establish written procurement procedures. 
These procedures must provide for, at a minimum, that--
    (1) Recipients avoid purchasing unnecessary items;
    (2) Where appropriate, an analysis is made of lease and purchase 
alternatives to determine which would be the most economical and 
practical procurement for the Federal Government; or
    (3) Solicitations for goods and services provide for all of the 
following:
    (i) A clear and accurate description of the technical requirements 
for the material, product, or service to be procured. In competitive 
procurements, a description shall not contain features which unduly 
restrict competition.
    (ii) Requirements which the bidder/offeror must fulfill and all 
other factors to be used in evaluating bids or proposals.
    (iii) A description, whenever practicable, of technical requirements 
in terms of functions to be performed or performance required, including 
the range of acceptable characteristics or minimum acceptable standards.
    (iv) The specific features of brand name or equal descriptions that 
bidders are required to meet when these items are included in the 
solicitation.
    (v) The acceptance, to the extent practicable and economically 
feasible, of products and services dimensioned in the metric system of 
measurement.
    (vi) Preference, to the extent practicable and economically 
feasible, for products and services that conserve natural resources and 
protect the environment, and are energy efficient.
    (b) Positive efforts shall be made by recipients to utilize small 
businesses,

[[Page 121]]

minority-owned firms, and women's business enterprises, whenever 
possible. Recipients of Federal awards shall take all of the following 
steps to further this goal:
    (1) Ensure that small businesses, minority-owned firms, and women's 
business enterprises are used to the fullest extent practicable.
    (2) Make information on forthcoming opportunities available and 
arrange time frames for purchases and contracts to encourage and 
facilitate participation by small businesses, minority-owned firms, and 
women's business enterprises.
    (3) Consider in the contract process whether firms competing for 
larger contracts intend to subcontract with small businesses, minority-
owned firms, and women's business enterprises.
    (4) Encourage contracting with consortiums of small businesses, 
minority-owned firms and women's business enterprises when a contract is 
too large for one of these firms to handle individually.
    (5) Use the services and assistance, as appropriate, of 
organizations such as the Small Business Administration and the 
Department of Commerce's Minority Business Development Agency in the 
solicitation and utilization of small businesses, minority-owned firms 
and women's business enterprises.
    (c) The type of procuring instruments used (e.g., fixed price 
contracts, cost reimbursable contracts, purchase orders, and incentive 
contracts) shall be determined by the recipient but must be appropriate 
for the particular procurement and for promoting the best interest of 
the program or project involved. The ``cost-plus-a-percentage-of-cost'' 
or ``percentage of construction cost'' methods of contracting must not 
be used.
    (d) Contracts are made only with responsible contractors who possess 
the potential ability to perform successfully under the terms and 
conditions of the proposed procurement. Consideration is given to 
matters as contractor integrity, record of past performance, financial 
and technical resources or accessibility to other necessary resources. 
In certain circumstances, contracts with certain parties are restricted 
by E.O. 12549 (implemented by the Secretary in 34 CFR Part 85) and E.O. 
12689--Debarment and Suspension.
    (e) Recipients shall, on request, make available for the Secretary, 
pre-award review and procurement documents, such as request for 
proposals or invitations for bids, independent cost estimates, etc., 
when any of the following conditions apply:
    (1) A recipient's procurement procedures or operation fails to 
comply with the procurement standards in this part.
    (2) The procurement is expected to exceed the small purchase 
threshold fixed at 41 U.S.C. 403 (11) (currently $25,000) and is to be 
awarded without competition or only one bid or offer is received in 
response to a solicitation.
    (3) The procurement, which is expected to exceed the small purchase 
threshold, specifies a ``brand name'' product.
    (4) The proposed award over the small purchase threshold is to be 
awarded to other than the apparent low bidder under a sealed bid 
procurement.
    (5) A proposed contract modification changes the scope of a contract 
or increases the contract amount by more than the amount of the small 
purchase threshold.

(Approved by the Office of Management and Budget under control number 
1880-0513)

(Authority: 20 U.S.C. 1221e-3, 3474; OMB Circular A-110)

[59 FR 34724, July 6, 1994, as amended at 60 FR 6660, Feb. 3, 1995]