[Federal Register: June 20, 2008 (Volume 73, Number 120)]
[Rules and Regulations]
[Page 35071]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jn08-5]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 35
State and Local Assistance
CFR Correction
In title 40 of the Code of Federal Regulations, parts 1 to 49,
revised as of July 1, 2007, on page 540, in Sec. 35.939, in paragraph
(g)(2)(ii), remove the remainder of the paragraph following ``in good
faith.'', and reinstate paragraphs (h) through (l) to read as follows:
Sec. 35.939 Protests.
* * * * *
(h) Deferral of procurement action. Upon receipt of a protest under
paragraph (d) of this section, the grantee must defer the protested
procurement action (for example, defer the issuance of solicitations,
contract award, or issuance of notice to proceed under a contract)
until 10 days after delivery of its determination to the participating
parties. (The grantee may receive or open bids at it own risk, if it
considers this to be in its best interest; and see Sec. 35.938-
4(h)(5).) Where the Regional Administrator has received a written
protest under paragraph (e) of this section, he must notify the grantee
promptly to defer its protested procurement action until notified of
the formal or informal resolution of the protest.
(i) Enforcement. (1) Noncompliance with the procurement provisions
of this subchapter by the grantee shall be cause for enforcement action
in accordance with one or more of the provisions of Sec. 35.965 of
this subpart.
(2) If the Regional Administrator determines that a protest
prosecuted pursuant to this section is frivolous, he may determine the
party which prosecuted such protest to be nonresponsible and ineligible
for future contract award (see also paragraph (k) of this section).
(j) Limitation. A protest may not be filed under this section with
respect to the following:
(1) Issues not arising under the procurement provisions of this
subchapter; or
(2) Issues relating to the selection of a consulting engineer,
provided that a protest may be filed only with respect to the mandatory
procedural requirements of Sec. Sec. 35.937 through 35.937-9;
(3) Issues primarily determined by State or local law or ordinances
and as to which the Regional Administrator, upon review, determines
that there is no contravening Federal requirement and that the
grantee's action has a rational basis (see paragraph (e)(4) of this
section).
(4) Provisions of Federal regulations applicable to direct Federal
contracts, unless such provisions are explicitly referred to or
incorporated in this subpart;
(5) Basic project design determinations (for example, the selection
of incineration versus other methods of disposal of sludge);
(6) Award of subcontracts or issuance of purchase orders under a
formally advertised, competitively bid, lump-sum construction contract.
However, protest may be made with respect to alleged violation of the
following:
(i) Specification requirements of Sec. 35.936-13; or
(ii) Provisions of this subpart applicable to the procurement
procedures, negotiation or award of subcontracts or issuance of
purchase orders under Sec. Sec. 35.937-12 (subcontracts under
subagreements for architectural or engineering services) or Sec.
35.938-9 (subcontracts under construction contracts).
(k) Summary disposition. The Regional Administrator may summarily
dismiss a protest, without proceedings under paragraph (d) or (e) of
this section, if he determines that the protest is untimely, frivolous
or without merit--for example, that the protested action of the grantee
primarily involves issues of State or local law. Any such determination
shall refer briefly to the facts substantiating the basis for the
determination.
(l) Index. The EPA General Counsel will publish periodically as a
notice document in the Federal Register an index of Regional
Administrator protest determinations. (See, e.g., 43 FR 29085, July 5,
1978.)
[FR Doc. E8-14037 Filed 6-19-08; 8:45 am]
BILLING CODE 1505-01-D