[Code of Federal Regulations]

[Title 40, Volume 1]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR31.36]



[Page 359-367]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

               CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY

 

PART 31_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE 

AGREEMENTS TO STATE AND LOCAL GOVERNMENTS--Table of Contents

 

                    Subpart C_Post-Award Requirements

 

Sec. 31.36  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 contract includes any clauses required by 

Federal statutes and executive orders and their implementing 

regulations. Other grantees and subgrantees will



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follow paragraphs (b) through (i) in this section.

    (b) Procurement standards. (1) Grantees and subgrantees will use 

their own procurement procedures which reflect applicable State and 

local laws and regulations, provided that the procurements conform to 

applicable federal law, the standards identified in this section, and if 

applicable, Sec. 31.38.

    (2) Grantees and subgrantees will maintain a contract administration 

system which ensures that contractors perform in accordance with the 

terms, 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 grantee or subgrantee shall participate in 

selection, or in the award or administration 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, employees or agents will 

neither solicit nor accept gratuities, favors or anything of monetary 

value from contractors, potential contractors, or parties to 

subagreements. Grantee and subgrantees 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 regulations, such standards or conduct will provide for 

penalties, sanctions, or other disciplinary actions for violations of 

such standards by the grantee's and subgrantee's officers, employees, or 

agents, or by contractors or their agents. The awarding agency may in 

regulation provide additional prohibitions relative to real, apparent, 

or potential conflicts of interest.

    (4) Grantee and subgrantee procedures will provide for a review of 

proposed procurements to avoid purchase of unnecessary or duplicative 

items. Consideration should be given to consolidating or breaking out 

procurements to obtain a more economical purchase. Where appropriate, an 

analysis will be made of lease versus purchase alternatives, and any 

other appropriate analysis to determine the most economical approach.

    (5) To foster greater economy and efficiency, grantees and 

subgrantees are encouraged to enter into State and local 

intergovernmental agreements for procurement or use of common goods and 

services.

    (6) Grantees and subgrantees are encouraged to use Federal excess 

and surplus property in lieu of purchasing new equipment and property 

whenever such use is feasible and reduces project costs.

    (7) Grantees and subgrantees are encouraged to use value engineering 

clauses in contracts for construction projects of sufficient size to 

offer reasonable opportunities for cost reductions. Value engineering is 

a systematic and creative anaylsis of each contract item or task to 

ensure that its essential function is provided at the overall lower 

cost.

    (8) Grantees and subgrantees will make awards only to responsible 

contractors possessing the ability to perform successfully under the 

terms and conditions of a proposed procurement. Consideration will be 

given to such matters as contractor integrity, compliance 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 procurement. These records will 

include, but are not necessarily limited to the following: 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.



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    (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 

limited to source evaluation, protests, disputes, 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 that of the grantee or subgrantee unless 

the matter is primarily a Federal concern. Violations of law will be 

referred 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 procurements and shall in all 

instances disclose information regarding the protest to the awarding 

agency. A protestor must exhaust all administrative remedies with the 

grantee and subgrantee before pursuing a protest with the Federal 

agency. Reviews of protests by the Federal agency will be limited to:

    (i) Violations of Federal law or regulations and the standards of 

this section (violations of State or local law will be under the 

jurisdiction of State or local authorities) and

    (ii) Violations of the grantee's or subgrantee's protest procedures 

for failure to review a complaint or protest. Protests 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 competition consistent with the 

standards of Sec. 31.36. Some of the situations considered to be 

restrictive of competition include but are not limited to:

    (i) Placing unreasonable requirements 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 consultants that are on retainer 

contracts,

    (v) Organizational conflicts of interest,

    (vi) Specifying only a ``brand name'' product instead of allowing 

``an equal'' product to be offered and describing the performance of 

other relevant requirements of the procurement, and

    (vii) Any arbitrary action in the procurement 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 evaluation of bids or 

proposals, except in those cases where applicable Federal statutes 

expressly mandate or encourage geographic preference. Nothing in this 

section preempts State licensing laws. When contracting for 

architectural 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 selection procedures for procurement 

transactions. These procedures will ensure that all solicitations:

    (i) Incorporate a clear and accurate description of the technical 

requirements for the material, product, or service to be procured. Such 

description shall not, in competitive procurements, contain features 

which unduly restrict competition. The description may include a 

statement of the qualitative nature of the material, product or service 

to be procured, and when necessary, shall set forth those minimum 

essential characteristics and standards to which it must conform if it 

is to satisfy its intended use. Detailed 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 procurement. 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.



[[Page 362]]



    (4) Grantees and subgrantees will ensure that all prequalified lists 

of persons, firms, or products which are used in acquiring goods and 

services are current 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 solicitation 

period.

    (5) Construction grants awarded under Title II of the Clean Water 

Act are subject to the following ``Buy American'' requirements in 

paragraphs (c)(5) (i)-(iii) of this section. Section 215 of the Clean 

Water Act requires that contractors give preference to the use of 

domestic material in the construction of EPA-funded treatment works.

    (i) Contractors must use domestic construction materials in 

preference to nondomestic material if it is priced no more than 6 

percent higher than the bid or offered price of the nondomestic 

material, including all costs of delivery to the construction site and 

any applicable duty, whether or not assessed. The grantee will normally 

base the computations on prices and costs in effect on the date of 

opening bids or proposals.

    (ii) The award official may waive the Buy American provision based 

on factors the award official considers relevant, including:

    (A) Such use is not in the public interest;

    (B) The cost is unreasonable;

    (C) The Agency's available resources are not sufficient to implement 

the provision, subject to the Deputy Administrator's concurrence;

    (D) The articles, materials or supplies of the class or kind to be 

used or the articles, materials or supplies from which they are 

manufactured are not mined, produced or manufactured in the United 

States in sufficient and reasonably available commerical quantities or 

satisfactory quality for the particular project; or

    (E) Application of this provision is contrary to multilateral 

government procurement agreements, subject to the Deputy Administrator's 

concurrence.

    (iii) All bidding documents, subagreements, and, if appropriate, 

requests for proposals must contain the following ``Buy American'' 

provision: In accordance with section 215 of the Clean Water Act (33 

U.S.C. 1251 et seq.) and implementing EPA regulations, the contractor 

agrees that preference will be given to domestic construction materials 

by the contractor, subcontractors, materialmen and suppliers in the 

performance of this subagreement.

    (d) Methods of procurement to be followed--(1) Procurement by small 

purchase procedures. Small purchase procedures are those relatively 

simple and informal procurement methods for securing services, supplies, 

or other property that do not cost more than the simplified 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 

obtained from an adequate number of qualified sources.

    (2) Procurement by sealed bids (formal advertising). Bids are 

publicly solicited and a firm-fixed-price contract (lump sum or unit 

price) is awarded to the responsible bidder whose bid, conforming 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 conditions in 31.36(d)(2)(i) apply.

    (i) In order for sealed bidding to be feasible, the following 

conditions should be present:

    (A) A complete, adequate, and realistic specification or purchase 

description is available;

    (B) Two or more responsible bidders are willing and able to compete 

effectively and for the business; and

    (C) The procurement lends itself to a firm fixed price contract and 

the selection of the successful bidder can be made principally on the 

basis of price.

    (ii) If sealed bids are used, the following 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 sufficient time prior to the date set for opening the bids;

    (B) The invitation for bids, which will include any specifications 

and pertinent attachments, shall define the



[[Page 363]]



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 invitation 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, transportation 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 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 proposals. 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 awarded. 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 publicized and identify all 

evaluation factors and their relative importance. Any response to 

publicized requests for proposals shall be honored to the maximum extent 

practical;

    (ii) Proposals will be solicited from an adequate number of 

qualified sources;

    (iii) Grantees and subgrantees will have a method for conducting 

technical evaluations of the proposals received and for selecting 

awardees;

    (iv) Awards will be made to the responsible 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) 

professional services whereby competitors' qualifications are evaluated 

and the most qualified competitor is selected, subject to negotiation of 

fair and reasonable compensation. The method, where price is not used as 

a selection factor, can only be used in procurement of A/E professional 

services. It cannot be used to purchase other types of services though 

A/E firms are a potential source to perform the proposed effort.

    (4) Procurement by noncompetitive proposals is procurement through 

solicitation of a proposal from only one source, or after solicitation 

of a number of sources, competition is determined inadequate.

    (i) Procurement by noncompetitive proposals may be used only when 

the award of a contract is infeasible under small purchase procedures, 

sealed bids 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 solicitation;

    (C) The awarding agency authorizes noncompetitive proposals; or

    (D) After solicitation of a number of sources, competition is 

determined inadequate.

    (ii) Cost analysis, i.e., verifying the proposed cost data, the 

projections of the data, and the evaluation of the specific elements of 

costs and profits, is required.

    (iii) Grantees and subgrantees may be required to submit the 

proposed procurement 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 minority firms, 

women's business enterprises, and labor surplus area firms are used when 

possible.

    (2) Affirmative steps shall include:

    (i) Placing qualified small and minority businesses and women's 

business enterprises on solicitation lists;

    (ii) Assuring that small and minority businesses, and women's 

business enterprises are solicited whenever they are potential sources;

    (iii) Dividing total requirements, when economically feasible, into 

smaller tasks or quantities to permit maximum participation by small and 

minority business, and women's business enterprises;



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    (iv) Establishing delivery schedules, where the requirement permits, 

which encourage participation by small and minority business, and 

women's business enterprises;

    (v) Using the services and assistance of the Small Business 

Administration, and the Minority Business Development 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 paragraphs (e)(2) (i) through 

(v) of this section.

    (f) Contract cost and price. (1) Grantees and subgrantees must 

perform a cost or price analysis in connection with every procurement 

action including contract modifications. The method and degree of 

analysis is dependent on the facts surrounding the particular 

procurement situation, but as a starting point, grantees must make 

independent estimates before receiving bids or proposals. A cost 

analysis must be performed when the offeror is required to submit the 

elements of his estimated cost, e.g., under professional, consulting, 

and architectural engineering services contracts. A cost analysis will 

be necessary when adequate price competition is lacking, and for sole 

source procurements, including contract modifications or change orders, 

unless price resonableness can be established 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 determine the 

reasonableness of the proposed contract price.

    (2) Grantees and subgrantees will negotiate 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 profit, consideration will be given to 

the complexity of the work to be performed, the risk borne by the 

contractor, the contractor's investment, the amount of subcontracting, 

the quality of its record of past performance, 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 Sec. 31.22). Grantees may reference their own cost 

principles that comply with the applicable Federal cost principles.

    (4) The cost plus a percentage of cost and percentage of 

construction cost methods of contracting shall not be used.

    (g) Awarding agency review. (1) Grantees and subgrantees must make 

available, upon request of the awarding agency, technical specifications 

on proposed procurements where the awarding agency believes such review 

is needed to ensure that the item and/or service specified is the one 

being proposed for purchase. This review generally 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 solicitation has been developed, the 

awarding agency may still review the specifications, with such review 

usually limited to the technical aspects of the proposed purchase.

    (2) Grantees and subgrantees must on request make available for 

awarding agency pre-award review procurement documents, such as requests 

for proposals or invitations for bids, independent cost estimates, etc. 

when:

    (i) A grantee's or subgrantee's procurement procedures or operation 

fails to comply with the procurement standards 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 expected to exceed the simplified 

acquisition 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



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    (v) A proposed contract modification changes the scope of a contract 

or increases the contract amount by more than the simplified acquisition 

threshold.

    (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 request that its procurement system 

be reviewed by the awarding agency to determine whether its system meets 

these standards in order for its system to be certified. Generally, 

these reviews shall occur where there is a continuous high-dollar 

funding, and third-party contracts are awarded on a regular 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 procedure, 

awarding agencies may wish to rely on written assurances from the 

grantee or subgrantee that it is complying with these standards. A 

grantee or subgrantee will cite specific procedures, regulations, 

standards, etc., as being in compliance with these requirements and have 

its system available for review.

    (h) Bonding requirements. For construction or facility improvement 

contracts or subcontracts exceeding the simplified acquisition 

threshold, the awarding agency may accept the bonding policy and 

requirements of the grantee or subgrantee provided the awarding agency 

has made a determination 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 instrument 

accompanying a bid as assurance that the bidder will, upon acceptance of 

his bid, execute such contractual documents as may be required within 

the time specified.

    (2) A performance bond on the part of the contractor for 100 percent 

of the contract price. A ``performance bond'' is one executed in 

connection with a contract 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 executed in connection 

with a contract to assure payment as required by law of all persons 

supplying labor and material in the execution of the work provided for 

in the contract.

    (i) Contract provisions. A grantee's and subgrantee's contracts must 

contain provisions in paragraph (i) of this section. Federal agencies 

are permitted to require changes, remedies, changed conditions, access 

and records retention, suspension of work, and other clauses approved by 

the Office of Federal Procurement Policy.

    (1) Administrative, contractual, or legal remedies in instances 

where contractors violate or breach contract terms, and provide for such 

sanctions and penalties as may be appropriate. (Contracts more than the 

simplified acquisition threshold)

    (2) Termination for cause and for convenience by the grantee or 

subgrantee including the manner by which it will be effected and the 

basis for settlement. (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 contracts awarded in 

excess of $10,000 by grantees and their contractors or subgrantees)

    (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 contracts and subgrants for construction or repair)

    (5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to 276a-7) 

as supplemented by Department of Labor regulations (29 CFR part 5). 

(Construction contracts in excess of $2000 awarded by



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grantees and subgrantees when required by Federal grant program 

legislation)

    (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 employment of mechanics or 

laborers)

    (7) Notice of awarding agency requirements and regulations 

pertaining to reporting.

    (8) Notice of awarding agency requirements 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 

copyrights and rights in data.

    (10) Access by the grantee, the subgrantee, the Federal grantor 

agency, the Comptroller General of the United States, or any of their 

duly authorized representatives to any books, documents, papers, and 

records of the contractor which are directly pertinent to that specific 

contract for the purpose of making audit, examination, excerpts, and 

transcriptions.

    (11) Retention of all required records for three years after 

grantees or subgrantees 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 Environmental Protection Agency regulations (40 CFR 

part 15). (Contracts, subcontracts, 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 conservation plan issued in 

compliance with the Energy Policy and Conservation Act (Pub. L. 94-163, 

89 Stat. 871).

    (j) Payment to consultants. (1) EPA will limit its participation in 

the salary rate (excluding overhead) paid to individual consultants 

retained by grantees or by a grantee's contractors or subcontractors to 

the maximum daily rate for a GS-18. (Grantees may, however, pay 

consultants more than this amount). This limitation applies to 

consultation services of designated individuals with specialized skills 

who are paid at a daily or hourly rate. This rate does not include 

transportation and subsistence costs for travel performed; grantees will 

pay these in accordance with their normal travel reimbursement 

practices. (Pub. L. 99-591).

    (2) Subagreements with firms for services which are awarded using 

the procurement requirements in this part are not affected by this 

limitation.

    (k) Use of the same architect or engineer during construction. (1) 

If the grantee is satisfied with the qualifications and performance of 

the architect or engineer who provided any or all of the facilities 

planning or design services for a waste-water treatment works project 

and wishes to retain that firm or individual during construction of the 

project, it may do so without further public notice and evaluation of 

qualifications, provided:

    (i) The grantee received a facilities planning (Step 1) or design 

grant (Step 2), and selected the architect or engineer in accordance 

with EPA's procurement regulations in effect when EPA awarded the grant; 

or

    (ii) The award official approves noncompetitive procurement under 

Sec. 31.36(d)(4) for reasons other than simply using the same 

individual or firm that provided facilities planning or design services 

for the project; or

    (iii) The grantee attests that:

    (A) The initial request for proposals clearly stated the possibility 

that the firm or individual selected could be awarded a subagreement for 

services during construction; and

    (B) The firm or individual was selected for facilities planning or 

design services in accordance with procedures specified in this section.

    (C) No employee, officer or agent of the grantee, any member of 

their immediate families, or their partners have financial or other 

interest in the firm selected for award; and



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    (D) None of the grantee's officers, employees or agents solicited or 

accepted gratuities, favors or anything of monetary value from 

contractors or other parties to subagreements.

    (2) However, if the grantee uses the procedures in paragraph (k)(1) 

of this section to retain an architect or engineer, any Step 3 

subagreements between the architect or engineer and the grantee must 

meet all of the other procurement provisions in Sec. 31.36.



[53 FR 8068 and 8087, Mar. 11, 1988, and amended at 53 FR 8075, Mar. 11, 

1988; 60 FR 19639, 19644, Apr. 19, 1995; 66 FR 3794, Jan. 16, 2001]