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:

(1) Ensure that hazardous materials and operations to be utilized in the performance of the contract are clearly identified, and

(ii) Coordinate with appropriate safety officer to ensure that all hazardous materials and operations are evaluated and that adequate safety requirements are established in the request for procurement.

(2) During the period of performance: (1) Apprise the contracting officer of any noncompliance with safety and health provisions identified in the contract, and

(ii) Cooperate with the safety officer in conducting review and surveillance activities.

§ 3-1.5205 Contract clause.

(a) Use of clause. All contracts which require the use of hazardous materials or operations shall include a clause to provide adherance to minimum safety and health standards. The clause set forth in paragraph (b) of this section may be appropriately modified to meet the needs of the individual contract. (b) Contract clause.

SAFETY AND HEALTH CLAUSE

(1) In order to provide safety controls for protection to the life and health of employees and other persons; for prevention of damage to all property; and for avoidance of work interruptions in the performance of the contract; the Contractor will comply with the following standards:

(Insert the codes, standards, and criteria (including any applicable State and local requirements) prescribed by the Safety Officer) Further, the Contractor shall take or cause to be taken such additional safety measures as the Contracting Officer may determine to be reasonably necessary: Provided, That if

compliance with such additional safety measures results in a material increase in the cost or time of performance of the contract, an equitable adjustment will be made in accordance with the clause of this contract entitled "Changes".

(2) Prior to commencement of work, the Contractor will submit in writing his plan for complying with the safety and health provisions of this contract, and will meet with the Contracting Officer or his designated representative to discuss and develop mutual understanding relative to administration of the overall safety program.

(3) During the performance of work under this contract, the Contractor shall comply with all procedures prescribed by the Contracting Officer for the control and safety of persons visiting the job site and will comply with such requirements to prevent accidents as may be prescribed by the Contracting Off

cer.

(4) The Contractor will maintain an accurate record of, and will report to the Contracting Officer in such manner as the Contracting Officer may prescribe, all accidents and incidents resulting in death, traumatic injury, occupational disease, and/or damage to all property incident to work performed under the contract.

(5) The Contracting Officer shall notify (if otherwise, confirm in writing) the Contractor of any noncompliance with the provisions of this clause and corrective action to be taken. After receipt of such notice, the Contractor shall immediately take such corrective action. (Such notice, when delivered to the Contractor or his representative at the site of the work, shall be deemed sufficient for the purpose.) If the Contractor fails or refuses to comply promptly, the Contracting Officer may issue an order stopping all or part of the work until satisfactory corrective action has been taken. No part of the time lost due to any such stop order shall be the subject of claim for extension of time or for costs or damages by the Contractor.

(6) The Contractor shall insert the substance of this clause in each subcontract involving the use of hazardous materials or operations. Compliance with the provisions of this clause by subcontractors will be the responsibility of the Contractor. Subpart 3-1.53-Considerations in Selecting Award Instrument-Contract or Grant

SOURCE: The provisions of this Subpart 3-1.53 appear at 35 F.R. 16921, Nov. 3, 1970, unless otherwise noted.

or grant instruments as the means for defining the terms and conditions, and the nature of the agreement between the Department and the recipient. The two instruments are intended to be different in purpose and application and, when properly employed, create different relationships between the parties.

(b) Because of these differences, the choice between using a contract or a grant in any given circumstances must be made carefully. The purpose of this Subpart 3-1.53 is to provide general guidance on the considerations which are relevant to such choices.

§ 3-1.5302 Applicability.

This subpart applies to all programs in which (a) the amount of the award, (b) the decision to make the award, and (c) the choice between using a contract or a grant as the award instrument are not specified by law, and are therefore within the administrative discretion of the awarding agency.

§ 3-1.5303 Selection criteria.

§ 3-1.5303-1 Basic selection criteria.

(a) Contracts. The contract is the appropriate instrument when:

(1) The objective is the acquisition of a specified service or end product for the Government; or

(2) In order to accomplish its mission, the awarding agency must exercise considerable direction and control over the manner of performance or timing of the work.

(b) Grants. The grant is the appropriate instrument for providing support to an activity of the applicant which is in furtherance of a statutory purpose of the awarding agency when:

(1) There is no expectation of a specific service or end product to be furnished to the Government as a quid pro quo for Federal funds; or

(2) The awarding agency does not need to exercise considerable direction and control over the manner of performance or timing of the work, and therefore extensive freedom of approach in carrying out the purpose of the award is to be reserved to the recipient.

primarily originates within the Government. Conversely, grants are preferred when the initiative primarily originates with the applicant for support. However, this is not intended to limit or prohibit either the stimulation of grant applications by awarding agencies, or the award of contracts pursuant to unsolicited proposals in appropriate circumstances (see Subpart 3-4.52 of this chapter).

(b) Grants are the preferred instrument for support of basic research projects. (Applied research may be supported by either contracts or grants, in accordance with other criteria in this regulation.)

§ 3-1.5304 Mandatory use of contracts. Notwithstanding the provisions set forth in § 3-1.5303, selection of contracts is mandatory whenever:

(a) An award is to be made to a commercial (1.e., profit-making) organization; or

(b) Material having a security classification is involved; or

(c) Payment of an amount in excess of actual costs (i.e., profit or fee) is intended.

accurate and current information which is consistent with the present needs of the procurement office.

[37 FR 3353, Feb. 15, 1972]

Subpart 3-2.4-Opening of Bids and
Award of Contract

SOURCE: 39 FR 13261, Apr. 12, 1974, unless otherwise noted.

§ 3-2.403 Recording of bids.

§ 3-2.403-50 Forms.

Forms HEW-538, Abstract of Bids, and HEW-538A, Continuation Sheet, shall be used for the recording of bids. The forms are available through normal distribution channels.

§ 3-2.406-3 Other mistakes disclosed before award.

(a) Circumstances permitting the correction or withdrawal of bids are set forth in § 1-2.406-3 of this title.

(b) Authority has been delegated to the Deputy Assistant Secretary for Grants and Procurement Management to make administrative determinations in connection with mistakes in bid alleged after opening of bids and before award. This authority may not be redelegated.

(c) Each such determination shall be approved by the Assistant General Counsel, Business and Administrative Law Division, Office of General Counsel, OS. (d) Suspected or alleged mistakes shall be processed as follows:

(1) Whenever the contracting officer suspects that a mistake may have been made in a bid, he shall immediately request the bidder to verify the bid. Such request shall inform the bidder why the request for verification is made-that a mistake is suspected and the basis for such suspicion; e.g., that the bid is significantly out of line with the next low or other bids or with the Government's estimate. If the time for acceptance of bids is likely to expire before a decision can be made, the contracting officer shall request all bidders whose bids may become eligible for award to extend the time for acceptance of their bids. If the bidder whose bid is believed erroneous does not grant such extension of time and a decision cannot be reached before expiration of the time for acceptance, the bid shall be considered as originally submitted.

(2) If the bidder verifies his bid, the contracting officer shall consider it as originally submitted. If the bidder alleges a mistake, the contracting officer shall advise him to support his allegation by

statements concerning the alleged mistake and by all pertinent evidence, such as the bidder's file copy of the bid, his original worksheets and other data used in preparing the bid, subcontractors' and suppliers' quotations, if any, published price lists, and any other evidence which will serve to establish the mistake, the manner in which it occurred, and the bid actually intended.

(3) The data required by § 1-2.406-3 (d) (3) of this title will be marked "IMMEDIATE ACTION-MISTAKE IN BID" and submitted, in duplicate, in the most expeditious manner through procurement channels to the Deputy Assistant Secretary for Grants and Procurement Management, OASAM, for evaluation and administrative determination. The file shall be assembled in an orderly manner including an index of enclosures.

(4) Since examination of evidence is necessary to determine the proper course of action to be taken, no action will be taken on cases referred by telephone or telegraph.

(5) Where the bidder fails or refuses to furnish evidence in support of a suspected or alleged mistake, the contracting officer shall consider the bid as submitted unless the amount of the bid is so far out of line with the amounts of other bids received or with the amount estimated by the procuring activity or determined by the contracting officer to be reasonable, or there are other indications of error so clear, as reasonably to justify the conclusion that acceptance of the bid would be unfair to the bidder or to other bona fide bidders, in which case it may be rejected. The attempts made to obtain the information required and the action taken with respect to the bid shall be fully documented.

(6) Where the evidence submitted by the bidder is incomplete or in need of clarification, the contracting officer shall document the file to indicate his efforts to obtain clear and convincing evidence to support the alleged mistake.

(e) Doubtful mistakes in bid shall not be submitted by contracting officers directly to the Comptroller General for advance decisions, but shall be submitted as outlined in paragraph (d) (3) of this section.

award, the mistake may be corrected by contract amendment or supplemental agreement if correcting the mistake would make the contract more favorable to the Government without changing the essential requirements of the contract.

(b) In addition to the cases contemplated in § 1-2.406-4(a) of this title, the Deputy Assistant Secretary for Grants and Procurement Management is authorized, under the circumstances set forth in § 1-2.406-4 (c) of this title, to make the administrative determinations described below in connection with mistakes in bids alleged or disclosed after award.

(1) A determination may be made to rescind a contract where the original contract price does not exceed $1,000.

of

(2) A determination may be made to reform a contract, irrespective amount, (i) to delete the item involved in the mistake where such deletion does not reduce the contract price by more than $1,000, or (ii) to increase the price where such increase does not exceed $1,000 and if the contract price, as corrected, does not exceed that of the next lowest acceptable bid under the original invitation for bids.

(c) Determinations under § 1-2.406-4 (b) of this title may be made only on the basis of clear and convincing evidence that a mistake in bid was made, and either that the mistake was mutual or that the unilateral mistake made by the contractor was so apparent as to have charged the contracting officer with notice of the probability of the mistake. If the evidence does not warrant a determination under § 1-2.406-4 (b) (1) or (b) (2), of this title, a determination may be made that no change shall be made in the contract as awarded.

(d) Authority to make administrative determinations in connection with mistakes in bid disclosed after award has been delegated to the Deputy Assistant Secretary for Grants and Procurement Management, OASAM.

(e) Each determination shall be approved by the Assistant General Counsel, Business and Administrative Law Division, Office of General Counsel, OS. § 3-2.407

Award.

§ 3-2.407-8 Protests against award.

(a) General. (1) Contracting officers shall consider all protests or objections regarding the award of a contract whether submitted before or after award,

provided such protests are filed in a timely manner. In order to be considered timely, protests based on alleged improprieties in any type of solicitation which are apparent before bid opening or the closing date for receipt of proposals shall be filed prior to bid opening or the closing date for receipt of proposals. In other cases, protests shall be filed not later than 5 working days after the basis for protest is known or should have been known, whichever is earlier. If a protest has been filed initially with the contacting officer, any subsequent protest to the Secretary, Department of Health, Education, and Welfare, or the General Accounting Office filed within 5 days of notification of adverse action will be considered provided the initial protest to the contracting officer was timely. Written confirmation of all protests shall be requested from protestants. The protestant shall be notified in writing of the final decision on the protest, and the notification shall set forth the rationale upon which the decision is based.

(2) Reports concerning protests, whether before or after award, shall include the following documentation:

(i) A statement by the procuring activity's headquarters procurement staff office, containing its recommendation, with supporting reasons, as to the merits of the protest.

(ii) The contracting officer's statement of facts and circumstances including a discussion of the merits.

(iii) The contracting officer's conclusions and recommendations including documentary evidence on which they are based.

(iv) A copy of the IFB or RFP.

(v) A copy of the abstract of bids or proposals.

(vi) A copy of the bid or proposal of the successful offeror to whom award has been made or is proposed to be made.

(vii) A copy of the bid or proposal of the protestant, if any.

(viii) The current status of award. Where award has been made, this shall include whether performance has commenced, shipment or delivery has been made, or a stop work order has been issued.

(ix) A copy of any mutual agreement to suspend work on a no-cost basis when appropriate (see § 1-2.407-8(c) of this title).

(x) Copies of the notice of protest given offerors and other parties when

such notice is appropriate (see § 1-2.407-8 (a) (3) of this title).

(xi) A copy of the technical evaluation report required by § 3-3.5104, of this chapter when applicable, and a copy of each evaluator's rating for all proposals.

(xii) A copy of the negotiation memorandum when applicable (see § 3-50.301 of this chapter).

(xiii) Any other documents which are relevant to the protest.

(xiv) The name and telephone number of the person in the procurement office who may be contacted for information relevant to the protest.

(xv) The file shall be assembled in an orderly manner and shall include an index of enclosures.

(3) Copies of the views of interested parties submitted pursuant to § 1-2.407-8 (a)(3) of this title shall be furnished to the Protest Control Officer, Office of Grants and Procurement ManagementOASAM, whenever the protest is reviewed by that office (including protests lodged with GAO).

(4) Whenever the contracting officer deems it desirable to obtain the views of higher authority or when such submission is required by paragraph (b) (2) of this section, the file shall be forwarded, in duplicate, through the cognizant protest control officer to the Departmental Protest Control Officer, Office of Grants and Procurement Management-OASAM, by the most expeditious means. The file shall be marked "IMMEDIATE ACTION-PROTEST BEFORE AWARD."

(5) The Office of Grants and Procurement Management-OASAM, has been designated as the headquarters office which GAO should contact concerning protests. All reports on protests lodged with GAO shall be submitted to that office.

(6) Each procuring activity of the Department shall designate a protest control officer, to serve as an advisor to the contracting officer and monitor protests from the time of initial notification until the protest has been resolved. The protest control officer should be a senior procurement specialist of the headquarters procurement office staff. In addition, procuring activities should designate similar officials within their principal components to the extent practicable and feasible. A copy of each appointment and termination of appointment of protest control officers shall be forwarded to the Director of Procurement Policy and

(b) Protest before award. (1) If award has not been made, the contracting officer shall require that written confirmation of an oral protest be filed within 5 working days of the oral notification. If the written protest is not received by the time specified, the oral protest may be disregarded and award made in the normal manner unless the contracting officer, upon investigation, finds that remedial action is required, in which event such action shall be taken. Contract files shall be documented to reflect the receipt of oral protests and the disposition thereof.

(2) In the following cases written protests received by the contracting officer shall be forwarded to the Protest Control Officer, Office of Grants and Procurement Management-OASAM: (i) The protestant requests referral to the Secretary of Health, Education, and Welfare; (ii) the protest is known to have been lodged with the Comptroller General, the Office of the Secretary, or the Small Business Administration; (iii) the protest is filed after award of contract; (iv) the contracting officer entertains some doubt as to the proper action regarding the protest or believes it to be in the best interest of the Government that the protest be considered by the Office of the Secretary or the Comptroller General.

Otherwise submission of protests to the Office of Grants and Procurement Management-OASAM, may be dispensed with by the contracting officer if he is satisfied that the protest is without any reasonable degree of foundation. Except as modified in § 1-2.407-8(b)(3) of this title and paragraph (b)(3) of this section, the contracting officer, with the concurrence of the procuring activity protest control officer, and either the Office of General Counsel, Business and Administrative Law Division, or cognizant Regional Attorney, may disallow the protest. Such action shall be followed by a written explanation to the Office of Grants and Procurement ManagementOASAM, documented by copies of any pertinent correspondence.

(3) Where is it known that a protest against the making of an award has been lodged directly with GAO, a determination to make award under § 1-2.407-8 (b) (4) of this title must be approved by