In addition to following the established El Paso Community College Purchasing Policies and Procedures and ensuring a vendor is not showing as debarred on the SAM website, the following requirements when using Federal funds affect the procurement process:
Purchases under $10,000
Micro-purchases, currently listed as those valued below $10,000 (the current micro-purchase threshold), may be made without soliciting competitive quotations if the non-Federal entity (such as EPCC is) considers the price to be reasonable. To the extent practicable, the non-Federal entity must distribute micro-purchases equitably among qualified suppliers. The dollar threshold may be changed from time to time.
Reference Code of Federal Regulations (CFR) 200.67 and 200.320; Texas Education Agency Circular, 8/28/2018.
Purchases $10,000 and over, but under $250,000 require more than one quote
Small purchases, currently those valued at $10,000 and over but under $250,000, may be made using a “relatively simple and informal” procurement method where price or rate quotations must be obtained from an adequate number of qualified sources. The number of sources is not named but there must be two or more. The dollar threshold may also be changed from time to time.
Reference Code of Federal Regulations 200.88 and 200.320; Texas Education Agency Circular, 8/28/2018.
Different definition of Conflict of Interest; Must Avoid Conflict of Interest!
The non-Federal entity must maintain written standards of conduct covering conflicts of interest and governing the performance of its employees engaged in the selection, award and administration of contracts. No employee, officer, or agent must participate in the selection, award, or administration of a contract supported by a Federal award if he or she has a real or apparent conflict of interest. Such a conflict of interest would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in or a tangible personal benefit from a firm considered for a contract. The officers, employees, and agents of the non-Federal entity must neither solicit nor accept gratuities, favors, or anything of monetary value from contractors or parties to subcontracts. However, non-Federal entities may set standards for situations in which the financial interest is not substantial or the gift is an unsolicited item of nominal value. The standards of conduct must provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the non-Federal entity.
Reference Code of Federal Regulations 200.318(c)
The non-Federal entity's procedures must avoid acquisition 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.
Reference Code of Federal Regulations 200.318(d)
Keep records, keep record of the rationale for the method of procurement
The non-Federal entity must maintain records sufficient to detail the history of 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.
Reference Code of Federal Regulations 200.318(i)
Maximum open and free (and fair) competition
All procurement transactions must be conducted in a manner providing full and open competition consistent with the standards of this section. In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, and invitations for bids or requests for proposals must be excluded from competing for such procurements. Some of the situations considered to be restrictive of competition include but are not limited to:(1) Placing unreasonable requirements on firms in order for them to qualify to do business;(2) Requiring unnecessary experience and excessive bonding;(3) Noncompetitive pricing practices between firms or between affiliated companies;(4) Noncompetitive contracts to consultants that are on retainer contracts;(5) Organizational conflicts of interest;(6) Specifying only a “brand name” product instead of allowing “an equal” product to be offered and describing the performance or other relevant requirements of the procurement; and(7) Any arbitrary action in the procurement process.
Reference Code of Federal Regulations 200.319(a)
The non-Federal entity must 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, the non-Federal entity must not preclude potential bidders from qualifying during the solicitation period.
Reference Code of Federal Regulations 200.319(d)
Several other laws speak to open, free and fair competition.
With some exceptions, no extra consideration for “local” or state
The non-Federal entity must conduct procurements in a manner that prohibits the use of statutorily or administratively imposed 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 criterion provided its application leaves an appropriate number of qualified firms, given the nature and size of the project, to compete for the contract.
Reference Code of Federal Regulations 200.319(b)
Cost or price analysis needed BEFORE procurement for purchases over $250,000
The non-Federal entity must perform a cost or price analysis in connection with every procurement action in excess of the Simplified Acquisition Threshold including contract modifications. The method and degree of analysis is dependent on the facts surrounding the particular procurement situation, but as a starting point, the non-Federal entity must make independent estimates before receiving bids or proposals.
Reference Code of Federal Regulations 200.323(a)
In some cases, profit must be negotiated separately (most co-ops don’t do this)
The non-Federal entity must 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 must 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.
Reference Code of Federal Regulations 200.323(a)
Vendors will be asked to attest to the following:
- Neither it nor the person represented by it, nor any person acting for the represented person has:
- violated the antitrust laws codified by Chapter 15, Business & Commerce Code of the State of Texas, or the federal antitrust laws; or
- directly or indirectly communicated the offer that this purchase order deems to accept to a competitor or other person engaged in the same line of business.
More vendor attestations:
- Vendors may also be asked to attest that they are in compliance with the following, as amended:
- Title VI of Civil Rights Act of 1964 (42 USC 2000d et seq.)
- Title VIII of Civil Rights Act of 1968 (42 USC 3601 et seq.)
- Executive Orders 11063 and 11246, as amended by Executive Orders 11375 and 12086 and as supplemented by 41 CFR Part 60.
- The Age Discrimination in Employment Act of 1967 (29 USC et seq.).
- The Age Discrimination Act of 1975 (42 USC 6101 et seq.).
- Section 504 of the Rehabilitation Act of 1973 (29 USC 794 et seq.) and 24 CFR Part 8.Prohibits recipients of Federal funds from excluding any qualified persons from participating or receiving benefit from, any federally funded program or activity based solely on his or her disability.
- National Environmental Policy Act of 1969, as amended, 42 USC 4321 et seq. (“NEPA”) and the related authorities listed 24 CFR Part 58.
- The Clean Air Act, as amended, (42 USC 7401 et seq.), the Clean Water Act of 1977, as amended (33 USC 1251 et seq.) and the related EPA regulations at 40 CFR Part 15, as amended from time to time, and Executive Order 11738. In no event shall any amount of the assistance provided under this Contract be utilized with respect to a facility that has given rise to a conviction under the Clean Air Act or the Clean Water Act.
- Immigration Reform and Control Act of 1986 (8 USC 1101 et seq.) specifically including the provisions requiring employer verifications of legal status of its employees.
- The Americans with Disabilities Act of 1990, as amended, (42 USC 12101 et seq.), the Architectural Barriers Act of 1968, as amended, (42 USC 4151 et seq.), and the Uniform Federal Accessibility Standards, 24 CFR Part 40, Appendix A.
- Drug Free Workplace Act of 1988 (41 USC 701 et seq.) and 24 CFR part 23, Subpart F.
- Davis-Bacon and related Acts. The Wage and Hour Division of the U.S. Department of Labor determines prevailing wage rates to be paid on federally funded or assisted construction projects may apply.
- Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as Amended may apply.
- Regulations at 24 CFR Part 87 related to lobbying, including the requirement that certifications and disclosures be obtained from all covered persons.
- Executive Order 12549 and 24 CFR Part 5.105 (c) pertaining to restrictions on participation by ineligible, debarred or suspended persons or entities.
- Executive Order 13559 and 24 CFR Part 5.109 pertaining to participation of faith based organizations in HUD’s programs and activities.
- Regulations at 24 CFR Part 882.708 (c) pertaining to site and neighborhood standards for new construction projects.
- Regulations at 24 CFR Part 570 pertaining to Community Development Block Grants, as applicable.
- Office and Management Budget (OMB) “Super Circular,” new requirements located at 2 CFR part 200, Regulations at 24 CFR Part 574 and Statute at 42 USC Chapter 131 pertaining to Housing Opportunities for Persons with AIDS, as applicable.
- Regulations at 24 CFR Part 576 and Statute at 42 USC 11302 pertaining to Emergency Solutions Grant, as applicable.
- Regulations at 24 CFR Part 5, regarding Income Eligibility, as applicable.
- Federal Funding Accountability and Transparency Act of 2006 (“FFATA”) (Pub.L. 109-282, as amended by Section 6205(a) of Pub.L. 110-252 and Section 3 of Pub.L. 113-101)
- Federal Whistleblower Regulations, as contained in 10 U.S.C. 2409, 41 U.S.C. 4712, 10 U.S.C. 2324, 41 U.S.C. 4304 and 41 U.S.C. 4310.
- Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708), 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5).
- Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the definition of “funding agreement” under 37 CFR §401.2 (a).
- Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)
- Resource Conservation and Recovery Act of 1976, as amended.
- Copeland “Anti-Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 276c) and as supplemented by Department of Labor regulations (29 CFR part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”).
- Buy American Act (41 USC 10a-10d) – Vendors will ensure compliance with the requirements for preference for domestic end products for supplies acquired for use in the United States when spending federal funds.
- Executive order 13788, 4/21/2017 which states that a non-federal entity should (not “must”), to the greatest extend practicable, provide a preference for the purchase, acquisition or use of goods, products or material produced in the U.S.(including but not limited to iron, aluminum, steel, cement and other manufactured products).