[Code of Federal Regulations]

[Title 45, Volume 1]

[Revised as of October 1, 2006]

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

[CITE: 45CFR74.44]



[Page 228-229]

 

                        TITLE 45--PUBLIC WELFARE

 

                    SUBTITLE A--DEPARTMENT OF HEALTH

                           AND HUMAN SERVICES

 

    PART 74_UNIFORM ADMINISTRATIVE REQUIREMENTS FOR AWARDS AND SUBAWARDS TO 

INSTITUTIONS OF HIGHER EDUCATION, HOSPITALS, OTHER NONPROFIT ORGANIZATIONS, 

AND COMMERCIAL ORGANIZATIONS--Table of Contents

 

                    Subpart C_Post-Award Requirements

 

Sec.  74.44  Procurement procedures.



    (a) All recipients shall establish written procurement procedures. 

These procedures shall 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 recipient and the Federal Government; and

    (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, such 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 such 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, minority-owned firms, and women's business enterprises, 

whenever possible. Recipients of HHS 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



[[Page 229]]



for one of these firms to handle individually.

    (5) Use the services and assistance, as appropriate, of such 

organizations 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 shall 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 shall not 

be used.

    (d) Contracts shall be made only with responsible contractors who 

possess the potential ability to perform successfully under the terms 

and conditions of the proposed procurement. Consideration shall be given 

to such 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 agencies' implementation of E.O.s 12549 and 12689, 

``Debarment and Suspension.'' (See 45 CFR part 76.)

    (e) Recipients shall, on request, make available for the HHS 

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

requests 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 simplified acquisition 

threshold fixed at 41 U.S.C. 403(11) (currently $100,000) 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 simplified 

acquisition threshold specifies a ``brand name'' product.

    (4) The proposed award over the simplified acquisition 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 

simplified acquisition threshold.



[59 FR 43760, Aug. 25, 1994, as amended at 61 FR 11747, Mar. 22, 1996; 

62 FR 41878, Aug. 4, 1997; 62 FR 51377, Oct. 1, 1997]