Federal Funds

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)

Buy Smart

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)

Anti-trust

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.

Contractual Provisions:

The following provisions are incorporated into, and form a part of, the terms and conditions of a purchase to be paid using federal funds, as applicable and consistent with the requirements of 2 CFR Part 200—Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (“Uniform Guidance”), Appendix II to Part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards. These provisions are in addition to El Paso County Community College District’s purchase order Terms & Conditions and General Conditions of Contract. As used below, “Contractor” refers to the Seller/Vendor/Offeror. As stated herein, “Contract” or “Contracts” refers to contract/purchase order/Services Agreement.

EQUAL EMPLOYMENT OPPORTUNITY (Applies if Contract constitutes a “federally assisted construction contract” under 41 CFR Part 60‐1.3, except as otherwise provided in 41 CFR Part 60): Contractor shall comply with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 CFR, 1964‐1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR Part 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The equal opportunity clause provided under 41 CFR 60‐1.4(b) and implementing regulations at 41 CFR Part 60 are incorporated into, and form a part of, the terms and conditions of the Contract.
DAVIS‐BACON ACT, AS AMENDED (40 U.S.C. 3141–3144, 3146–3148) (Applies when required by Federal program legislation; applies to Contract for construction work): Contractor shall comply with the Davis‐Bacon Act (40 U.S.C. 3141–3144, 3146–3148), as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction”). Under this Act, Contractor shall be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, Contractor shall be required to pay wages not less than once a week. All suspected or reported violations shall be reported to the Federal agency providing funding.
COPELAND “ANTI‐KICKBACK” ACT, AS AMENDED (18 U.S.C. 874 and 40 U.S.C. 3145) (Applies when required by Federal program legislation): Contractor shall comply with the Copeland “Anti‐Kickback” Act (18 U.S.C. 874 and 40 U.S.C. 3145), 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”). The Act provides that each contractor or subrecipient shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which they are otherwise entitled. All suspected or reported violations shall be reported to the Federal agency providing funding. Contractor agrees to notify all subcontractors of this requirement.
CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (40 U.S.C. 3701–3708) (Applicable to certain Contracts in excess of $100,000 that involve the employment of mechanics or laborers): Contractor shall comply with Section 3702 and Section 3704 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 3701‐3708), as supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction”). Under Section 3702 of the Act, Contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that Contractor compensates the worker at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Section 3704 is applicable to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working conditions that are unsanitary, hazardous, or dangerous. These requirements do not apply to the purchase of supplies or materials or articles ordinarily available on the open market, or Contracts for transmission of intelligence or transportation by land, air, or water.
RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT (Applies to Contracts that constitute a “funding agreement” under 37 CFR 401.2(a)): Contractor shall, in the assignment or performance of experimental, developmental, or research work under the Contract, comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the Federal agency providing funding.
CLEAN AIR ACT (42 U.S.C. 7401 ET SEQ.) AND CLEAN WATER ACT (33 U.S.C. 1251 et seq.) (Applies to Contracts in excess of $150,000): Contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401–7671q) and the Federal Water Pollution Control Act (33 U.S.C. 1251–1387), as amended (the “Clean Water Act”). Violations shall be reported to the Federal agency providing funding and the Regional Office of the Environmental Protection Agency.
BYRD ANTI‐LOBBYING AMENDMENT (31 U.S.C. 1352) (Applies to Contracts in excess of $100,000): Contractor (and, if applicable, any subcontractor) shall file the required certification under the Byrd Anti‐Lobbying Amendment (31 U.S.C. 1352), certifying to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, officer or employee of Congress, or an employee of a Member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. 1352. Contractor (and, if applicable, any subcontractor) shall also disclose any lobbying with non‐Federal funds that takes place in connection with obtaining any Federal award. Such disclosure(s) shall be forwarded from tier to tier up to the El Paso County Community College District.
PROCUREMENT OF RECOVERED MATERIALS (2 CFR 200.323): Contractor shall comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
DOMESTIC PREFERENCE FOR PROCUREMENTS (2 CFR 200.322): As appropriate and to the extent consistent with law, Contractor should, to the greatest extent practicable under the Federal grant, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products), as provided in 2 CFR 200.322. Contractor shall include these requirements in any lower‐tier awards under this Contract.
ACCESS TO RECORDS (2 CFR 200.337): As provided in 2 CFR 200.337, El Paso County Community College District, the Federal agency providing funding, Inspectors General, the Comptroller General of the United States, or any of their duly authorized representatives, have the right to access to any documents, papers, or other records of the Contractor that are pertinent to the Federal Grant, in order to make audits, examinations, excerpts, and transcriptions. This right includes timely and reasonable access to the Contractor’s personnel for the purpose of interview and discussion related to such documents.

Notwithstanding any express provision herein, Contractor agrees to comply with all applicable federal law, as amended.