[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2007 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          48


          Chapters 3 to 6

                         Revised as of October 1, 2007


          Federal Acquisition Regulations System
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2007
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 48:
          Chapter 3--Health and Human Services                       3
          Chapter 4--Department of Agriculture                      99
          Chapter 5--General Services Administration               163
          Chapter 6--Department of State                           307
  Finding Aids:
      Table of CFR Titles and Chapters........................     395
      Alphabetical List of Agencies Appearing in the CFR......     413
      List of CFR Sections Affected...........................     423

[[Page iv]]





                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 48 CFR 301.101 
                       refers to title 48, part 
                       301, section 101.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
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    To determine whether a Code volume has been amended since its 
revision date (in this case, October 1, 2007), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
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Code a note has been inserted to reflect the future effective date. In 
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states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in 11 separate 
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Sections Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
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and Finding Aids. This volume contains the Parallel Table of Statutory 
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also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of textual material 
appearing in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
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the top of odd-numbered pages.
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or write to the Director, Office of the Federal Register, National 
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[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
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                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

October 1, 2007.

[[Page ix]]



                               THIS TITLE

    Title 48--Federal Acquisition Regulations System is composed of 
seven volumes. The chapters in these volumes are arranged as follows: 
Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts 
201 to 299), chapters 3 to 6, chapters 7 to 14, chapters 15 to 28 and 
chapter 29 to end. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of October 1, 2007.

    The Federal acquisition regulations in chapter 1 are those 
government-wide acquisition regulations jointly issued by the General 
Services Administration, the Department of Defense, and the National 
Aeronautics and Space Administration. Chapters 2 through 99 are 
acquisition regulations issued by individual government agencies. Parts 
1 to 69 in each of chapters 2 through 99 are reserved for agency 
regulations implementing the Federal acquisition regulations in chapter 
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2 
through 99 contain agency regulations supplementing the Federal 
acquisition regulations.

    The OMB control numbers for the Federal Acquisition Regulations 
System appear in section 1.106 of chapter 1. For the convenience of the 
user section 1.106 is reprinted in the Finding Aids section of the 
second volume containing chapter 1 (parts 52 to 99).

    The first volume, containing chapter 1 (parts 1 to 51), includes an 
index to the Federal acquisition regulations.

    For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


[[Page 1]]



            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM




                  (This book contains chapters 3 to 6)

  --------------------------------------------------------------------
                                                                    Part

chapter 3--Health and Human Services........................         301

chapter 4--Department of Agriculture........................         401

chapter 5--General Services Administration..................         501

chapter 6--Department of State..............................         601

[[Page 3]]



                  CHAPTER 3--HEALTH AND HUMAN SERVICES




                           (Parts 300 to 399)

  --------------------------------------------------------------------


  Editorial Note: Nomenclature changes to chapter 3 appear at 70 FR 39, 
Jan. 3, 2005.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
301             HHS Acquisition Regulation System...........           5
302             Definitions of words and terms..............          11
303             Improper business practices and personal 
                    conflicts of interest...................          12
304             Administrative matters......................          14
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
305             Publicizing contract actions................          17
306             Competition requirements....................          17
307             Acquisition planning........................          19
309             Contractor qualifications...................          30
311             Describing agency needs.....................          32
312             Acquisition of commercial items.............          32
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
313             Simplified acquisition procedures...........          34
314             Sealed bidding..............................          34
315             Contracting by negotiation..................          35
316             Types of contracts..........................          51
317             Special contracting methods.................          52
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
319             Small business programs.....................          54
323             Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................          55
324             Protection of privacy and freedom of 
                    information.............................          55
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
328             Bonds and insurance.........................          59
330             Cost accounting standards...................          59

[[Page 4]]

332             Contract financing..........................          59
333             Protests, disputes, and appeals.............          61
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
335             Research and development contracting........          66
339             Acquisition of information technology.......          67
                    SUBCHAPTER G--CONTRACT MANAGEMENT
342             Contract administration.....................          69
                     SUBCHAPTER H--CLAUSES AND FORMS
352             Solicitation provisions and contract clauses          74
353             Forms.......................................          91
                   SUBCHAPTER T--HHS SUPPLEMENTATIONS
370             Special programs affecting acquisition......          92

[[Page 5]]

                          SUBCHAPTER A_GENERAL

               PART 301_HHS ACQUISITION REGULATION SYSTEM

               Subpart 301.1_Purpose, Authority, Issuance

Sec.

Sec. 301.101 Purpose.

Sec. 301.103 Authority

Sec. 301.106 OMB approval under the Paperwork Reduction Act.

                      Subpart 301.2_Administration


Sec. 301.270 Executive Committee for Acquisition.

                  Subpart 301.4_Deviations from the FAR


Sec. 301.403 Individual deviations.

Sec. 301.404 Class deviations.

Sec. 301.470 Procedure.

      Subpart 301.6_Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 301.602 Contracting officers.

Sec. 301.602-3 Ratification of unauthorized commitments.

Sec. 301.603 Selection, appointment, and termination of appointment of 
          Contracting Officers/Contract Specialists.

Sec. 301.603-1 General.

Sec. 301.603-2 Selection of Contracting Officers.

Sec. 301.603-3 Appointment of Contracting Officers.

Sec. 301.603-4 Termination or revocation of a Contracting Officer's 
          appointment.

Sec. 301.603-70 Delegation of Contracting Officer responsibilities.

Sec. 301.603-71 Waivers to warrant standards.

Sec. 301.603-72 Training and certification requirements for Contracting 
          Officers/Contract Specialists.

Sec. 301.603-73 Earned value training requirement for Contracting 
          Officers/Contract Specialists who administer an IT contract.

Sec. 301.603-74 Training policy exception.

Sec. 301.603-75 Training requirement for purchase cardholders, Approving 
          Officials (AOs), and Agency/Organization Program Coordinators 
          (A/OPCs).

Sec. 301.603-76 Requirement for certification retention and maintaining 
          currency of acquisition knowledge and skills for Contracting 
          Officers/Contract Specialists and purchasing agents.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4220, Jan. 17, 2001, unless otherwise noted.

               Subpart 301.1_Purpose, Authority, Issuance



Sec. 301.101  Purpose.

    (a) The Department of Health and Human Services Acquisition 
Regulation (HHSAR) is issued to establish uniform acquisition policies 
and procedures for the Department of Health and Human Services (HHS) 
which conform to the Federal Acquisition Regulation (FAR) System.
    (b) The HHSAR implements FAR policies and procedures and provides 
additional policies and procedures that supplement the FAR to satisfy 
the needs of HHS.
    (c) The HHSAR contains all formal departmental policies and 
procedures that govern the acquisition process or otherwise control 
contracting relationships between the Department's contracting offices 
and contractors.

[66 FR 4220, Jan. 17, 2001, as amended at 71 FR 76488, Dec. 20, 2006]



Sec. 301.103  Authority.

    (b) The HHSAR is prescribed by the Assistant Secretary for 
Administration and Management under the authority of 5 U.S.C. 301 and 
section 205(c) of the Federal Property and Administrative Services Act 
of 1949, as amended (40 U.S.C. 486(c)), as delegated by the Secretary.
    (c) The HHSAR is issued in the Code of Federal Regulations (CFR) as 
Chapter 3 of Title 48, Department of Health and Human Services 
Acquisition Regulation. It may be referenced as ``48 CFR Chapter 3.''



Sec. 301.106  OMB approval under the Paperwork Reduction Act.

    (a) The following OMB control numbers apply to the information 
collection and recordkeeping requirements contained in this chapter:

------------------------------------------------------------------------
                                                             OMB control
                       HHSAR segment                             No.
------------------------------------------------------------------------
315.4......................................................    0990-0139
324.70.....................................................    0990-0136
342.7101...................................................    0990-0131
352.224-70.................................................    0990-0137
352.224-70.................................................    0990-0136

[[Page 6]]

 
352.233-70.................................................    0990-0133
352.270-1..................................................    0990-0129
352.270-2..................................................    0990-0129
352.270-3..................................................    0990-0129
352.270-5..................................................    0990-0130
352.270-8..................................................    0990-0128
352.270-9..................................................    0990-0128
370.1......................................................    0990-0129
370.2......................................................    0990-0129
------------------------------------------------------------------------

    (b) The OMB control number ``OMB No. 0990-0115'' is to be included 
in the upper right corner of the first page of all solicitations, 
purchase orders, and contracts issued by departmental contracting 
activities. The number represents approval of the HHS acquisition 
process and covers recordkeeping and reporting requirements which are 
unique to individual acquisitions (e.g., requirements contained in 
specifications, statements of work, etc.).

                      Subpart 301.2_Administration



Sec. 301.270  Executive Committee for Acquisition.

    (a) The Deputy Assistant Secretary for Acquisition Management and 
Policy has established the Executive Committee for Acquisition (ECA) to 
assist and facilitate the planning and development of departmental 
acquisition policies and procedures and to assist in responding to other 
agencies and organizations concerning policies and procedures impacting 
the Federal acquisition process.
    (b) The ECA consists of members and alternates from the Division of 
Acquisition Policy (DAP), Agency for Healthcare Research and Quality, 
Centers for Medicare & Medicaid Services, Program Support Center, 
Centers for Disease Control and Prevention, Food and Drug 
Administration, Health Resources and Services Administration, Indian 
Health Service, National Institutes of Health, and Substance Abuse and 
Mental Health Services Administration. The ECA is chaired by the 
Director, Division of Acquisition Policy (DAP). All meetings will be 
held at the call of the Chair, and all activities will be carried out 
under the direction of the Chair.
    (c) The purposes of the ECA are to:
    (1) Advise and assist the Chair on major acquisition policy matters;
    (2) Review and evaluate the overall effectiveness of existing 
policies and procedures and the impact of new acquisition policies, 
procedures, and regulations on current acquisition policies and 
procedures.
    (d) The Chair will periodically issue a list of current members and 
alternates, including each person's name, title, organization, address, 
telephone number, and e-mail address. ECA members are responsible for 
apprising the Chair of any changes to the list.

[71 FR 76488, Dec. 20, 2006]

                  Subpart 301.4_Deviations From the FAR



Sec. 301.403  Individual deviations.

    Requests for individual deviations to either the FAR or HHSAR shall 
be prepared in accordance with 301.470 and forwarded to the Deputy 
Assistant Secretary for Acquisition Management and Policy (DASAMP).

[71 FR 76489, Dec. 20, 2006]



Sec. 301.404  Class deviations.

    Requests for class deviations to either the FAR or HHSAR shall be 
prepared in accordance with 301.470 and forwarded to the Deputy 
Assistant Secretary for Acquisition Management and Policy (DASAMP).

[71 FR 76489, Dec. 20, 2006]



Sec. 301.470  Procedure.

    (a) Deviation requests shall be prepared in memorandum form and 
forwarded through the Head of the Contracting Activity (HCA) to the 
Director, Division of Acquisition Policy. A deviation may be requested 
verbally in an exigency situation; however, the request must be 
confirmed in writing as soon as possible.
    (b) A deviation request shall clearly and precisely set forth the:
    (1) Nature of the needed deviation;
    (2) Identification of the FAR or HHSAR citation from which the 
deviation is needed;
    (3) Circumstances under which the deviation would be used;
    (4) Intended effect of the deviation;
    (5) Period or applicability;

[[Page 7]]

    (6) Reasons which will contribute to complete understanding and 
support of the requested deviation. A copy of pertinent background 
papers such as a contractor's request should accompany the deviation 
request.; and
    (7) Suggested wording for the deviation (if applicable).

[66 FR 4220, Jan. 17, 2001, as amended at 71 FR 76489, Dec. 20, 2006]

      Subpart 301.6_Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 301.602  Contracting officers.



Sec. 301.602-3  Ratification of unauthorized commitments.

    (b) Policy. (1) The Government is not bound by agreements or 
contractual commitments made to prospective contractors by persons to 
whom contracting authority has not been delegated. However, execution of 
otherwise proper contracts made by individuals without contracting 
authority, or by contracting officers in excess of the limits of their 
delegated authority, may be later ratified. The ratification must be in 
the form of a written document clearly stating that ratification of a 
previously unauthorized act is intended and must be signed by the head 
of the contracting activity (HCA).
    (2) The HCA is the official authorized to ratify an unauthorized 
commitment (but see paragraph (b)(3) of this section).
    (3) Ratification authority for actions up to $100,000 may be 
redelegated by the HCA to the chief of the contracting office (CCO). No 
other redelegations are authorized.
    (c) Limitations. (5) The concurrence of legal counsel concerning the 
payment issue is optional.
    (e) Procedures. (1) The individual who made the unauthorized 
contractual commitment shall furnish the reviewing Contracting Officer 
all records and documents concerning the commitment and a complete 
written statement of facts, including, a description of the requirement, 
the estimated or agreed upon price, the funds citation, an explanation 
of why the contracting office was not used and why the proposed 
contractor was selected, a list of other sources considered, and a 
statement as to whether the contractor has commenced work.
    (2) The Contracting Officer will review the submitted material and 
prepare it for ratification if it is determined that the commitment is 
ratifiable. The Contracting Officer shall forward the ratification 
document and the submitted material to the HCA or CCO with any comments 
or information which should be considered in evaluation of the request 
for ratification. If legal review is desirable, the HCA or CCO will 
coordinate the request for ratification with the Office of General 
Counsel, Business and Administrative Law Division.
    (3) If ratification is authorized by the HCA or CCO, the file will 
be returned, along with the ratification document, to the contracting 
officer for issuance of a purchase order or contract, as appropriate.

[66 FR 4220, Jan. 17, 2001, as amended at 71 FR 76489, Dec. 20, 2006]



Sec. 301.603  Selection, appointment, and termination of appointment of 

Contracting Officers/Contract Specialists.



Sec. 301.603-1  General.

    (a) The appointment, selection, and termination of appointment of 
Contracting Officers/Contract Specialists shall be made by the HCA. This 
authority is not delegable. The procedures for the selection and 
appointment of Contracting Officers/Contract Specialists shall apply to 
anyone seeking a Contracting Officer warrant. OPDIV procedures shall be 
followed in the appointment and termination of Contracting Officers/
Contract Specialists in offices that have Contracting Officers/Contract 
Specialists with dual signature warrants.
    (b) Standard Form (SF) 1402, ``Certificate of Appointment,'' shall 
be used to appoint personnel in the 1102 series as Contracting Officers. 
It shall also be used for personnel in any other series who will 
obligate the Government to the expenditure of funds in excess of the 
micro-purchase threshold. The SF 1402 shall indicate the Contracting 
Officer's warrant level and threshold and any other limitations. The HCA 
may

[[Page 8]]

determine an alternate appointment document for appointments at or below 
the micropurchase threshold level. Contracting Officer warrants will be 
issued to civil service personnel only. A delegation of procurement 
authority shall be set forth in a memorandum that describes the spending 
limits and authority. Changes to appointments shall be made by issuing a 
new appointment document. Each appointment document shall be prepared 
and maintained in accordance with FAR 1.603-1 and shall state the limits 
of the individual's authority.
    (c) An individual must be certified at the appropriate level as a 
prerequisite to being appointed as a Contracting Officer with authority 
to obligate funds in excess of the micro-purchase threshold (see 
301.603-72). The HCA will determine and require training for individuals 
appointed as Contracting Officers/Contract Specialists at dollar levels 
below the micropurchase threshold. Individuals selected for Contracting 
Officer warrant authority must meet the education, training, and 
experience requirements that are established for the warrant level. An 
individual shall be appointed as a Contracting Officer only in instances 
where a valid organizational need is demonstrated. Factors to be 
considered in assessing the need for an appointment of a Contracting 
Officer include volume of actions, complexity of work, and structure of 
the organization.
    (d) Contracting Officers (GS-1102's) shall not sign contracts or 
modifications to contracts which will result in the total amount of the 
contract exceeding their delegated warrant authority (as specified on 
the SF-1402). This includes Indefinite Delivery Indefinite Quantity 
(IDIQ) contracts. However, orders placed against an IDIQ may be issued 
by Contracting Officers up to their delegated authority provided that 
each order is separate and distinct.
    (e) Employees delegated warrant authority are the only individuals 
legally authorized to bind the Government by executing contracts or 
signing determinations and findings required by the FAR. The amount 
specified on the warrant shall cover the estimated maximum contract 
amount, including all option periods. For example, an employee with a 
$500,000 Contracting Officer Certificate of Appointment may not award a 
contract for a base year of $300,000 if the contract includes a one-year 
option for an additional $300,000. In this case, the total contract 
amount, including options, exceeds the amount stipulated in the warrant. 
If a warrant is limited to $500,000 (for example), the holder may not 
sign a contract for more than that amount, even if the additional amount 
is subject to the availability of funds. Contracting Officers with 
higher warrant levels may sign the action when modifications to orders 
and contracts make the total amount of the contract exceed the 
Contracting Officer's warrant limitation.

[71 FR 76489, Dec. 20, 2006]



Sec. 301.603-2  Selection of Contracting Officers.

    When it has been determined that the appointment is in the best 
interest of the OPDIV and/or Department and there is a demonstrated need 
for the procurement authority requested, nominations for appointment of 
Contracting Officers shall be submitted to the HCA through appropriate 
organizational channels for review. The HCA is responsible for 
appointing Contracting Officers in accordance with FAR 1.603. This 
authority is not delegable. The HCA will determine the documentation 
required, consistent with FAR 1.603-2, when the resulting appointment 
and authority will not exceed the micropurchase threshold.

[71 FR 76490, Dec. 20, 2006]



Sec. 301.603-3  Appointment of Contracting Officers.

    (a) Appointing officials must ensure that a warrant candidate meets 
the experience and education/training requirements listed in 301.603-72.
    (b) If it is essential to appoint an individual who does not fully 
meet the certification requirements for the Contracting Officer 
authority sought, an interim appointment may be granted by the HCA. HCAs 
are responsible for ensuring that training requirements are met within 
the specified time frame. Interim appointments may not

[[Page 9]]

exceed one year in total, and shall not be granted unless the individual 
can meet the certification requirements within one year from the date of 
appointment. The HCA may extend an interim appointment by granting 
additional time to complete the requirements of a permanent appointment. 
If the certification requirements are not completed by the extended 
date, the appointment will automatically terminate.

[71 FR 76490, Dec. 20, 2006]



Sec. 301.603-4  Termination or revocation of a Contracting Officer's 

appointment.

    Termination or revocation of Contracting Officer appointments shall 
be accomplished in accordance with FAR 1.603-4.

[71 FR 76490, Dec. 20, 2006]



Sec. 301.603-70  Delegation of Contracting Officer responsibilities.

    (a) Contracting Officer responsibilities which do not involve the 
obligation or deobligation of funds or result in establishing or 
modifying contractual provisions may be delegated by the Contracting 
Officer by means of a written memorandum that clearly delineates the 
delegation and its limits.
    (b) Contracting Officers may designate individuals as ordering 
officials to make purchases or place orders under blanket purchase 
agreements, indefinite delivery contracts, or other preestablished 
mechanisms. Ordering officials, including those under the National 
Institutes of Health's (NIH) Delegated Acquisition Program (DELPRO), are 
not Contracting Officers.

[71 FR 76490, Dec. 20, 2006]



Sec. 301.603-71  Waivers to warrant standards.

    There may be an unusual circumstance that requires delegation of a 
warrant to an employee who does not meet the warrant standards in of the 
HHS Contracting Officer Warrant Program. Any requests for waivers 
requesting deviations from the requirements and policies of the HHS 
Contracting Officer Warrant Program shall be sent in writing to the SPE 
for approval. The SPE will either approve or disapprove in writing the 
request for a waiver to the warrant standards. The SPE may grant waivers 
on a case-by-case basis in unique situations only.

[71 FR 76490, Dec. 20, 2006]



Sec. 301.603-72  Training and certification requirements for Contracting 

Officers/Contract Specialists.

    (a) Federal Acquisition Certification in Contracting (FAC-C) 
certification is not mandatory for all GS-1102s; however, members of the 
workforce issued new Contracting Officer (CO) warrants on or after 
January 1, 2007, regardless of GS series, must be certified at an 
appropriate level to support their warrant obligations, pursuant to 
agency policy. New CO warrants are defined in OFPP Policy Letter 05-01 
as warrants issued to employees for the first time at a department or 
agency. FAC-C certification does not apply to:
    (1) Senior level officials responsible for delegating procurement 
authority;
    (2) Non-1102s whose warrants are generally used to procure emergency 
goods and services; or
    (3) Non-1102s whose warrants are so limited as to be outside the 
scope of this program, as determined by the Chief Acquisition Officer 
(CAO).
    (b) HHS requires a senior level FAC-C certification for any employee 
issued an unlimited Contracting Officer's warrant on or after January 1, 
2007.
    (c) Achievement of the FAC-C is based on three requirements: 
education, training, and experience, and the requirements are 
cumulative, (i.e., a person must meet the requirements of each previous 
certification level).
    (d) FAC-C training requirements are as follows:
    (1) FAC-C Level I:
    (i) CON 100 Shaping Smart Business Arrangements.
    (ii) CON 110 Mission Support Planning.
    (iii) CON 111 Mission Strategy Execution.
    (iv) CON 112 Mission Performance Assessment.
    (v) CON 120 Mission Focused Contracting.
    (vi) 1 Elective.
    (2) FAC-C Level II:
    (i) CON 202 Intermediate Contracting.

[[Page 10]]

    (ii) CON 204 Intermediate Contract Pricing.
    (iii) CON 210 Government Contract Law.
    (iv) 2 Electives.
    (3) FAC-C Level III:
    (i) CON 353 Advanced Business Solutions for Mission Support.
    (ii) 2 Electives.
    (e) Those conducting simplified acquisitions from $2,500 to $100,000 
will need to be issued an HHS Simplified Acquisition Certificate. 
Required training is as follows:
    (1) HHS Simplified Acquisition Certificate A:
    (ii) Basic Simplified Acquisition Procedures/DAU's CON 237.
    (iii) Advanced Simplified Acquisition Procedures or Appropriations 
Law.
    (2) HHS Simplified Acquisition Certificate B:
    (i) Basic Simplified Acquisition Procedures/DAU's CON 237.
    (ii) Advanced Simplified Acquisition Procedures or Appropriations 
Law.
    (iii) CON 100 (Shaping Smart Business Arrangements).
    (iv) CON 110 (Mission Support Planning).
    (f) For additional information, see http://www.knownet.hhs.gov/
acquisition/careerhandbookver.1.0.doc.

[71 FR 76490, Dec. 20, 2006]



Sec. 301.603-73  Earned value training requirement for Contracting 

Officers/Contract Specialists who administer an IT contract.

    All GS-1102s who administer an IT contract, regardless of dollar 
threshold, are required to successfully complete the Department's 
(offered through HHS University) one-day course entitled ``Early Warning 
Project Management Systems Workshop,'' or an equivalent Earned Value 
training course. Determination of course equivalency shall be made 
jointly by the Office of Acquisition Management and Policy/ASAM and the 
HHS Office of the Chief Information Officer.

[71 FR 76490, Dec. 20, 2006]



Sec. 301.603-74  Training policy exception.

    In the event there is an urgent requirement for a Contracting 
Officer/Contract Specialist to award or administer an IT contract, and 
the Earned Value training requirement has not been met, the HCA (not 
delegable) may waive the training requirement and authorize the 
individual to perform the job duties, provided that the individual 
attends the next scheduled ``Early Warning Project Management System 
Workshop'' course, or an equivalent Earned Value course.

[71 FR 76490, Dec. 20, 2006]



Sec. 301.603-75  Training requirement for purchase cardholders, 

Approving Officials (AOs), and Agency/Organization Program 

Coordinators (A/OPCs).

    Training requirements for purchase cardholders, AOs, and A/OPCs are 
listed in the following table:

------------------------------------------------------------------------
                                    Program
        Authority \a\             participant      Required training \b\
------------------------------------------------------------------------
Up to $2,500.................  Prospective/newly  Basic purchase card
                                appointed          course (HHS
                                purchase           University 1-day
                                cardholders and    course) or an
                                Approving          equivalent course
                                Officials.         that has been
                                                   approved by the HHS
                                                   Acquisition Training
                                                   Coordinator prior to
                                                   appointment. Training
                                                   will include green-
                                                   purchasing and
                                                   Section 508
                                                   requirements.
                               Purchase card      Refresher purchase
                                holders and        card training,
                                Approving          including green-
                                Officials.         purchasing training
                                                   and Section 508
                                                   training, every 2
                                                   years.
$2,501 to $25,000............  Prospective/newly  
                                appointed          Basic Purchase Card
                                purchase           course.
                                cardholders and   
                                Approving          Basic Simplified
                                Officials.         Acquisition
                                                   Procedures/DAU's CON
                                                   237.
                                                  
                                                   Advanced Simplified
                                                   Acquisition
                                                   Procedures or
                                                   Appropriations Law.
                               Purchase card      Refresher purchase
                                holders and        card training,
                                Approving          including green-
                                Officials.         purchasing training
                                                   and Section 508
                                                   training, every 2
                                                   years.
$25,001 to $100,000..........  Prospective/newly  
                                appointed          Basic Purchase Card
                                purchase           course.
                                cardholders and   
                                Approving          Basic Simplified
                                Officials.         Acquisition
                                                   Procedures/DAU's CON
                                                   237.
                                                  
                                                   Advanced Simplified
                                                   Acquisition
                                                   Procedures or
                                                   Appropriations Law.
                                                   CON
                                                   100 (Shaping Smart
                                                   Business
                                                   Arrangements).
                                                   CON
                                                   110 (Mission Support
                                                   Planning).

[[Page 11]]

 
                               Purchase           Refresher purchase
                                cardholders and    card training,
                                Approving          including green-
                                Officials.         purchasing training
                                                   and Section 508
                                                   training, every 2
                                                   years.
Not applicable...............  Prospective/newly  Basic Purchase Card
                                appointed Agency/  course, Basic
                                Organization       Simplified
                                Program            Acquisition
                                Coordinators.      Procedures or DAU's
                                                   CON 237, Advanced
                                                   Simplified
                                                   Acquisition
                                                   Procedures or
                                                   Appropriations Law,
                                                   CON 100 (Shaping
                                                   Smart Business
                                                   Arrangements), and
                                                   CON 110 (Mission
                                                   Support Planning).
                               Agency/            Refresher purchase
                                Organization       card training,
                                Program            including green-
                                Coordinators.      purchasing training
                                                   and Section 508
                                                   training, every 2
                                                   years (attendance at
                                                   GSA's annual training
                                                   conference satisfies
                                                   refresher training).
------------------------------------------------------------------------
\a\ Cardholders and Approving Officials with authorized increases in DPA
  have up to 6 months to complete the training requirements for the new
  DPA.
\b\ CON 237, CON 100, and CON 110 are available at the DAU Web site at
  http://www.dau.mil/registrar/enroll.asp. CON 100 is also offered
  through HHS University (see Web site at: http://learning.hhs.gov).


[71 FR 76490, Dec. 20, 2006]



Sec. 301.603-76  Requirement for certification retention and maintaining 

currency of acquisition knowledge and skills for Contracting 

Officers/Contract Specialists and purchasing agents.

    To maintain a FAC-C, GS-1102s, including all warranted Contracting 
Officers regardless of series, shall earn 80 continuous learning points 
(CLPs) every two years beginning January 1, 2008. For GS-1105s and GS-
1106s, a minimum of forty (40) hours (or continuous learning points) is 
required every two years after all mandatory training requirements have 
been met. Certification will expire if the CLPs are not earned every two 
years, and may result in a loss of warrant authority.

[71 FR 76490, Dec. 20, 2006]

                 PART 302_DEFINITIONS OF WORDS AND TERMS

                        Subpart 302.1_Definitions

Sec.

Sec. 302.101 Definitions.

                    Subpart 302.2_Definitions Clause


Sec. 302.201 Contract clause.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4222, Jan. 17, 2001, unless otherwise noted.

                        Subpart 302.1_Definitions



Sec. 302.101  Definitions.

    Agency head or head of the Agency, unless otherwise specified, means 
the head of the Operating Division (OPDIV) for Agency for Healthcare 
Research and Quality (AHRQ), Centers for Disease Control and Prevention 
(CDC), Centers for Medicare & Medicaid Services (CMS), Food and Drug 
Administration (FDA), Health Resources and Services Administration 
(HRSA), Indian Health Service (IHS), National Institutes of Health 
(NIH), Substance Abuse and Mental Health Services (SAMHSA), and the 
Deputy Secretary for the Office of the Secretary (OS).
    Chief of the Contracting Office (CCO) is typically a mid-level 
management official, usually an office director, division director, or 
branch chief, who manages and monitors the daily contract operations of 
an OPDIV or major component of an OPDIV. The CCO is subordinate to the 
Head of Contracting Activity (HCA), except where the HCA and CCO are the 
same individual.
    Head of the contracting activity (HCA)--
    (1) Occupies designated organization positions as follows:

ASAM-OS--Deputy Assistant Secretary for Acquisition Management and 
    Policy
AHRQ--Director, Division of Contracts Management
CMS--Director, Office of Acquisition and Grants Management
PSC--Director, Division of Acquisition Management
CDC--Director, Procurement and Grants Office
FDA--Director, Office of Acquisitions & Grant Services
HRSA--Director, Division of Procurement Management
IHS--Director, Division of Acquisition Policy

[[Page 12]]

NIH--Director, Office of Acquisition Management and Policy
SAMHSA--Director, Division of Contracts Management

    (2) Each HCA is responsible for conducting an effective and 
efficient acquisition program. Adequate controls shall be established to 
assure compliance with applicable laws, regulations, procedures, and the 
dictates of good management practices. Periodic reviews shall be 
conducted and evaluated by qualified personnel, preferably assigned to 
positions other than in the contracting office being reviewed, to 
determine the extent of adherence to prescribed policies and 
regulations, and to detect a need for guidance and/or training.
    (3) The heads of contracting activities may redelegate their HCA 
authorities to the extent that redelegation is not prohibited by the 
terms of their respective delegations of authority, by law, by the 
Federal Acquisition Regulation, by the HHS Acquisition Regulation, or by 
other regulations. However, HCA and other contracting approvals and 
authorities shall not be redelegated below the levels specified in the 
HHS Acquisition Regulation or, in the absence of coverage in the HHS 
Acquisition Regulation, the Federal Acquisition Regulation. To ensure 
proper control of redelegated acquisition authorities, HCAs shall 
maintain a file containing successive delegations of HCA authority 
through and including the Contracting Officer level. Personnel delegated 
responsibility for acquisition functions must possess a level of 
experience, training, and ability commensurate with the complexity and 
magnitude of the acquisition actions involved.
    Project Officer is a Federal employee who monitors contractor 
performance and provides technical guidance to the Contract Specialist/
Contracting Officer. The Project Officer serves as the Contract 
Specialist/Contracting Officer's authorized representative to monitor 
specific aspects of the contract, thereby ensuring that the contractor's 
performance meets the standards set forth in the contract, the technical 
requirements under the contract are met by the delivery date(s) and/or 
within the period of performance, and performance is accomplished within 
the price or estimated cost stated in the contract. A Project Officer is 
required to comply with HHS Project Management Certification Program 
training requirements. The term ``Project Officer'' is synonymous with 
Contracting Officer's Representative (COR) and Contracting Officer's 
Technical Representative (COTR).

[71 FR 76491, Dec. 20, 2006]

                    Subpart 302.2_Definitions Clause



Sec. 302.201  Contract clause.

    The FAR clause, Definitions, at 52.202-1 shall be used as prescribed 
in FAR 2.201, except as follows:
    (a) In accordance with 52.202-1(a)(1), paragraph (a) at 352.202-1 
shall be used in place of paragraph (a) of the FAR clause.
    (b) In accordance with 52.202-1(a)(1), paragraph (h), or its 
alternate, at 352.202-1 shall be added to the end of the FAR clause. Use 
paragraph (h) when a fixed-priced contract is anticipated; use the 
alternate to paragraph (h) when a cost-reimbursement contract is 
anticipated. This is an authorized deviation.

[71 FR 76492, Dec. 20, 2006]

 PART 303_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 303.1_Safeguards

Sec.

Sec. 303.101 Standards of conduct.

Sec. 303.101-3 Agency regulations.

Sec. 303.104-7 Violations or possible violations of the Procurement 
          Integrity Act.

        Subpart 303.2_Contract Gratuities to Government Personnel


Sec. 303.203 Reporting suspected violations of the Gratuities clause.

         Subpart 303.3_Reports of Suspected Antitrust Violations


Sec. 303.303 Reporting suspected antitrust violations.

[[Page 13]]

                      Subpart 303.4_Contingent Fees


Sec. 303.405 Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

Subpart 303.6_Contracts With Government Employees or Organizations Owned 
                          or Controlled by Them


Sec. 303.602 Exceptions.

             Subpart 303.7_Voiding and Rescinding Contracts


Sec. 303.704 Policy.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4223, Jan. 17, 2001, unless otherwise noted.

                        Subpart 303.1_Safeguards



Sec. 303.101  Standards of conduct.



Sec. 303.101-3  Agency regulations.

    (a)(3) The Department of Health and Human Services' Standards of 
Conduct are prescribed in 45 CFR part 73.

[71 FR 76492, Dec. 20, 2006]



Sec. 303.104-7  Violations or possible violations of the Procurement 

Integrity Act.

    (a)(1) The contracting officer's determination that a reported 
violation or possible violation of the statutory prohibitions has no 
impact on the impending award or selection of a contractor must be 
submitted through appropriate channels, along with supporting 
documentation, to the Head of Contracting Activity (HCA) for review and 
approval of the determination awarding a contract.
    (2) The contracting officer's determination that a reported 
violation or possible violation of the statutory prohibitions has an 
impact on the pending award or selection of a contractor must be 
referred through channels, along with all related information available, 
to the HCA (if the HCA is an SES) or to another SES official designated 
by the OpDiv. That individual will--
    (i) Refer the matter immediately to the Deputy Assistant Secretary 
for Acquisition Management and Policy (DASAMP), Assistant Secretary for 
Administration and Management, Office of the Secretary, for review, 
which may consult with the Office of General Counsel (OGC) and the 
Office of Inspector General (OIG), as appropriate; and
    (ii) Determine the action to be taken on the procurement in 
accordance with FAR 3.104-7(c) and (d). The HCA shall obtain the 
approval or concurrence of the OAMP before proceeding with the action.
    (b) The individual in paragraph (a)(2) of this section acts as the 
agency head designee with respect to actions taken under the FAR clause 
52.203-10, Price or Fee Adjustment for Illegal or Improper Authority.

[70 FR 39, Jan. 3, 2005, as amended at 71 FR 76492, Dec. 20, 2006]

       Subpart 303.2_Contractor Gratuities to Government Personnel



Sec. 303.203  Reporting suspected violations of the Gratuities clause.

    Departmental personnel shall report suspected violations of the 
Gratuities clause in accordance with subpart M, Reporting Violations, of 
45 CFR part 73. Refer to subpart B, Gifts from Outside Sources, (5 CFR 
2635.201) for an explanation regarding what is prohibited and what is 
permitted.

         Subpart 303.3_Reports of Suspected Antitrust Violations



Sec. 303.303  Reporting suspected antitrust violations.

    (h) A copy of the agency report of suspected antitrust violations 
submitted to the Attorney General by the HCA shall also be submitted to 
the Director, Office of Acquisition Management and Policy.

[71 FR 76492, Dec. 20, 2006]

                      Subpart 303.4_Contingent Fees



Sec. 303.405  Misrepresentations or violations of the Covenant Against 

Contingent Fees.

    (a) Reports shall be made promptly to the Contracting Officer.
    (b)(4) Suspected fraudulent or criminal matters to be reported to 
the Department of Justice shall be prepared in letter format and 
forwarded through acquisition channels to the head of the contracting 
activity for signature. The

[[Page 14]]

letter must contain all pertinent facts and background information 
considered by the Contracting Officer and chief of the contracting 
office that led to the decision that fraudulent or criminal matters may 
be present. A copy of the signed letter shall be sent to the Director, 
Office of Acquisition Management and Policy.

[71 FR 76492, Dec. 20, 2006]

Subpart 303.6_Contracts With Government Employees or Organizations Owned 
                          or Controlled by Them



Sec. 303.602  Exceptions.

    Approval of an exception to the policy stated in FAR 3.601 shall be 
made by the HCA (not delegable).

             Subpart 303.7_Voiding and Rescinding Contracts



Sec. 303.704  Policy.

    (a) For purposes of implementing FAR subpart 3.7, the authorities 
granted to the ``agency head or designee'' shall be exercised by the HCA 
(not delegable).

[71 FR 76492, Dec. 20, 2006]

                     PART 304_ADMINISTRATIVE MATTERS

                    Subpart 304.6_Contract Reporting

Sec.

Sec. 304.602 Federal Procurement Data System--Next Generation (FPDS-NG).

                 Subpart 304.8_Government Contract Files


Sec. 304.804-70 Contract closeout audits.

  Subpart 304.70_Acquisition Instrument Identification Numbering System


Sec. 304.7000 Scope of subpart.

Sec. 304.7001 Numbering acquisitions.

     Subpart 304.71_Review and Approval of Proposed Contract Awards


Sec. 304.7100 Policy.

Sec. 304.7101 Procedures.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4224, Jan. 17, 2001, unless otherwise noted.

                   Subpart 304.6_Contracting Reporting



Sec. 304.602  Federal Procurement Data System--Next Generation (FPDS-
          NG).

    The Departmental Contracts Information System (DCIS) represents the 
Department's implementation of the FPDS-NG. All departmental contracting 
activities are required to use the DCIS and follow the procedures stated 
in the Enhanced Departmental Contracts Information System Manual, 
available at http://dcis.hhs.gov, and amendments to the manual. The HCA 
(not delegable) shall ensure that all required contract information is 
collected, submitted, and received into the DCIS on or before the 15th 
of each month for all contracts and contract modifications awarded in 
the previous month.

[71 FR 76492, Dec. 20, 2006]

                 Subpart 304.8_Government Contract Files



Sec. 304.804-70  Contract closeout audits.

    (a) Contracting Officers shall rely, to the maximum extent possible, 
on single audits to close physically completed cost-reimbursement 
contracts with colleges and universities, hospitals, non-profit firms, 
and State and local governments. In addition, where appropriate, a 
sample of these contractors may be selected for audit, in accordance 
with paragraph (b) of this section.
    (b) Contracting officers shall request contract closeout audits on 
physically completed, cost-reimbursement, for-profit contracts in 
accordance with the following:
    (1) The Office of the Inspector General (OIG) and ASAM's Deputy 
Assistant Secretary for Acquisition Management and Policy in conjunction 
with the OPDIV's cost advisory/audit focal point, determine which 
contracts or contractors will be audited, which audit agency will 
perform the audit, and the type and scope of closeout audit to be 
performed. These decisions shall be based upon the needs of the 
customer, risk analysis, return on investment, and the availability of 
audit

[[Page 15]]

resources. When an audit is warranted prior to closing a contract, the 
Contracting Officer shall submit the audit request to the OIG's Office 
of Audit, via the OPDIV's cost advisory/audit focal point.
    (2) Except where a contracting officer suspects misrepresentation or 
fraud, contract closeout field audits shall not be requested if the cost 
of performance is likely to exceed the potential cost recovery. 
Contracts that are not selected for a field audit may be closed on the 
basis of a desk review, subject to any later on-site audit findings. The 
release executed by the contractor shall contain the following 
statement:

    The Contractor agrees, pursuant to the clause in this contract 
entitled ``Allowable Cost'' or ``Allowable Cost and Fixed Fee'' (as 
appropriate), that the amount of any sustained audit exceptions 
resulting from any audit made after final payment shall be refunded to 
the Government.''

[66 FR 4224, Jan. 17, 2001, as amended at 71 FR 76493, Dec. 20, 2006]

  Subpart 304.70_Acquisition Instrument Identification Numbering System



Sec. 304.7000  Scope of subpart.

    This subpart prescribes policy and procedures for assigning 
identifying numbers to contracts and related instruments, including 
solicitation documents, purchase orders, and delivery orders. The HCA 
(not delegable) is responsible for establishing the numbering system 
within the OPDIV.



Sec. 304.7001  Numbering acquisitions.

    (a) Acquisitions which require numbering. The following acquisitions 
shall be numbered in accordance with the system prescribed in paragraphs 
(b), (c), and (d) of this section:
    (1) Contracts, including letter contracts and task orders under 
basic ordering agreements, which involve the payment of $2,500 or more 
for the acquisition of personal property or nonpersonal services. (The 
number assigned to a letter contract shall be assigned to the 
superseding definitized contract).
    (2) Contracts which involve the payment of $2,000 or more for 
construction (including renovation or alteration).
    (3) Contracts which involve more than one payment regardless of 
amount.
    (4) Requests for proposals and invitations for bids.
    (5) Requests for quotations.
    (6) Basic ordering agreements.
    (b) Numbering system for contracts. All contracts which require 
numbering (paragraphs (a)(1) through (3) of this section) shall be 
assigned a number consisting of the following:
    (1) The three digit identification code of the Department (HHS);
    (2) A one digit alphabetic identification code of the servicing 
agency:

O Office of the Secretary
P Program Support Center
M Centers for Medicare & Medicaid Services
F Food and Drug Administration
D Centers for Disease Control and Prevention
I Indian Health Service
S Substance Abuse and Mental Health Administration
N National Institutes of Health
H Health Resources and Services Administration
A Agency for Health Care Research & Quality

    (3) The three digit numeric identification code assigned by the 
Deputy Assistant Secretary for Acquisition Management and Policy 
(DASAMP) to the contracting office within the servicing agency;
    (4) A four digit fiscal year designation (e.g., 2005, 2006);
    (5) A five digit alphanumeric tracking number the content of which 
is determined by the contracting office within the servicing agency; and
    (6) A one digit code describing the type of contract action:

A Commercial Item Acquisition
C New Definitive Contract
P Purchase Using Simplified Acquisition
I Indefinite Delivery Contract (IDIQ)
O Basic Ordering Agreement (BOA)
B Blanket Purchase Agreement (BPA)
F Facilities Contract
U Contracts placed with or through other Government departments, GSA 
contracts, or against mandatory source contracts such as the National 
Industries for the Blind (NIB), the National Industries for the Severely 
Handicapped (NISH), and the Federal Prison Industries (UNICOR)
L Lease Agreement
W Government-wide Acquisition Contract (GWAC)

[[Page 16]]

E Letter Contract
G Federal Supply Schedule
M Micropurchase

    For example, the first contract for NIH, National Cancer Institute, 
for fiscal year 2005 may be numbered HHSN261200500001C.
    (c) Numbering system for orders. Order numbers will be assigned to 
contracts with orders. The order number shall be up to a seventeen digit 
number consisting of the following:
    (1) The three digit identification code of the Department (HHS);
    (2) A one digit numeric identification code of the servicing agency:

O Office of the Secretary
P Program Support Center
M Centers for Medicare & Medicaid Services
F Food and Drug Administration
D Centers for Disease Control and Prevention
I Indian Health Service
S Substance Abuse and Mental Health Administration
N National Institutes of Health
H Health Resources and Services Administration
A Agency for Health Care Research and Quality;

    (3) The three digit numeric identification code assigned by the 
Office of Acquisition Management and Policy (OAMP) to the contracting 
office within the servicing agency;
    (4) An alphanumeric tracking number, up to ten characters, the 
content of which is determined by the contracting office within the 
servicing agency.
    (d) Numbering system for other acquisitions. The HCA is responsible 
for developing a numbering system for the acquisitions other than 
contracts listed in paragraphs, (a)(4) through (a)(6) of this section, 
and any other types of acquisitions that may be used.
    (e) Assignment of identification codes. Each contracting office of 
the Department shall be assigned a three digit identification code by 
the ASAM/OAMP. Requests for the assignment of codes for newly 
established contracting offices shall be submitted by a headquarters 
official from the new contracting office to the OAMP. A listing of the 
contracting office identification codes currently in use is contained in 
the Enhanced Departmental Contracts Information System Manual, available 
at http://dcis.hhs.gov.

[66 FR 4224, Jan. 17, 2001, as amended at 70 FR 39, Jan. 3, 2005; 70 FR 
11583, Mar. 9, 2005; 71 FR 76493, Dec. 20, 2006]

     Subpart 304.71_Review and Approval of Proposed Contract Awards



Sec. 304.7100  Policy.

    This subpart requires each HCA (not delegable) to establish review 
and approval procedures for proposed contracts actions to ensure that:
    (a) Contract awards are in conformance with law, established 
policies and procedures, and sound business practices;
    (b) Contractual documents properly reflect the mutual understanding 
of the parties; and
    (c) The contracting officer is informed of deficiencies and items of 
questionable acceptability, and corrective action is taken.



Sec. 304.7101  Procedures.

    (a) All contractual documents, regardless of dollar value, are to be 
reviewed by the contracting officer prior to award.
    (b) The HCA is responsible for establishing review and approval 
procedures and designating acquisition officials to serve as reviewers. 
Each HCA is responsible for determining the criterion (criteria) to be 
used in determining which contracts are to be reviewed, and that a 
sampling of proposed contracts not included in the ``to be reviewed'' 
group are reviewed and approved.
    (c) Officials assigned responsibility for review and approval of 
contract actions must possess qualifications in the field of acquisition 
commensurate with the level of review performed, and, at a minimum, 
possess those acquisition skills expected of a contracting officer. 
However, if any official is to serve as the contracting officer and sign 
the contractual document, the review and approval function shall be 
performed by an appropriate official at least one level above.

[[Page 17]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                  PART 305_PUBLICIZING CONTRACT ACTIONS

           Subpart 305.2_Synopsis of Proposed Contract Actions

Sec.

Sec. 305.202 Exceptions.

                Subpart 305.3_Synopsis of Contract Awards


Sec. 305.303 Announcement of contract awards.

                    Subpart 305.5_Paid Advertisements


Sec. 305.502 Authority.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4225, Jan. 17, 2001, unless otherwise noted.

           Subpart 305.2_Synopsis of Proposed Contract Actions



Sec. 305.202  Exceptions.

    (b) When a contracting office believes that it has a situation where 
advance notice is not appropriate or reasonable, it shall prepare a 
memorandum citing all pertinent facts and details and send it, through 
normal acquisition channels, to the Deputy Assistant Secretary for 
Acquisition Management and Policy (DASAMP) requesting relief from 
synopsizing. The DASAMP shall review the request and decide whether an 
exception to synopsizing is appropriate or reasonable. If it is, the 
DASAMP shall take the necessary coordinating actions required by FAR 
5.202(b). Whatever the decision is on the request, the DSAMP shall 
promptly notify the contracting office when a determination has been 
made.

[71 FR 76493, Dec. 20, 2006]

                Subpart 305.3_Synopses of Contract Awards



Sec. 305.303  Announcement of contract awards.

    (a) Public announcement. Awards over $3.5 million, not otherwise 
exempt under FAR 5.303, shall be reported by the Contracting Officer to 
the Office of the Assistant Secretary for Legislation (Congressional 
Liaison), Room 406G, Hubert H. Humphrey Building. Notification shall be 
accomplished by providing a copy of the contract or award document face 
page to the referenced office prior to the day of award, or in 
sufficient time to allow for an announcement to be made by 5 p.m. 
Washington, DC time on the day of award. Notification may also be 
accomplished by e-mailing a copy of the contract or award document face 
page to [email protected], or faxing to (202) 205-2420.

[71 FR 76493, Dec. 20, 2006]

                    Subpart 305.5_Paid Advertisements



Sec. 305.502  Authority.

    The Contracting Officer may advertise or place notices in newspapers 
and periodicals to announce that proposals are being sought.

[71 FR 76493, Dec. 20, 2006]

                    PART 306_COMPETITION REQUIREMENTS

   Subpart 306.2_Full and Open Competition After Exclusion of Sources

Sec.

Sec. 306.202 Establishing or maintaining alternative sources.

           Subpart 306.3_Other Than Full and Open Competition


Sec. 306.302 Circumstances permitting other than full and open 
          competition.

Sec. 306.302-1 Only one responsible source and no other supplies or 
          services will satisfy agency requirements.

Sec. 306.302-7 Public interest.

Sec. 306.303 Justification.

Sec. 306.303-1 Requirements

Sec. 306.303-2 Content.

Sec. 306.304 Approval of the justification.

                   Subpart 306.5_Competition Advocates


Sec. 306.501 Requirement.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

[[Page 18]]


    Source: 66 FR 4225, Jan. 17, 2001, unless otherwise noted.

   Subpart 306.2_Full and Open Competition After Exclusion of Sources



Sec. 306.202  Establishing or maintaining alternative sources.

    (a) The reference to the agency head in FAR 6.202 (a) shall mean the 
appropriate competition advocate cited in 306.501.
    (b)(1) The required determination and findings (D&F) shall be 
prepared by the contracting officer based on the data provided by 
program personnel, and shall be signed by the appropriate competition 
advocate. The D&F signatory is not delegable.

           Subpart 306.3_Other Than Full and Open Competition



Sec. 306.302  Circumstances permitting other than full and open 

competition.



Sec. 306.302-1  Only one responsible source and no other supplies or 

services will satisfy agency requirements.

    (a)(2)(iv) Follow-on contracts for the continuation of major 
research and development studies on long-term social and health 
programs, major research studies, or clinical trials may be deemed to be 
available only from the original source when it is likely that award to 
any other source would result in unacceptable delays in fulfilling the 
Department's or OPDIV's requirements.
    (b) Application. (5) When the head of the program office has 
determined that only specified makes and models of technical equipment 
or parts must be obtained to meet the activity's program responsibility 
to test and evaluate certain kinds and types of products, and only one 
source is available. (This criterion is limited to testing and 
evaluation purposes only and may not be used for initial outfitting or 
repetitive acquisitions. Project officers should support the use of this 
criterion with citations from their agency's legislation and the 
technical rationale for the item of equipment required.)

[71 FR 76493, Dec. 20, 2006]



Sec. 306.302-7  Public interest.

    (a) Authority. (2) Agency head, in this instance, means the 
Secretary.
    (c) Limitations. An ``approval package'' must be prepared by the 
contracting officer and staffed through departmental acquisition 
channels to the Secretary. The package shall include a determination and 
findings for the Secretary to sign that contains all pertinent 
information to support justification for exercising the exemption to 
competition, and a letter for the Secretary to sign notifying Congress 
of the determination to award a contract under the authority of 41 
U.S.C. 253(c)(7).



Sec. 306.303  Justifications.



Sec. 306.303-1  Requirements.

    (a)(1) The Program Office must provide a written justification 
whenever it requests that certain goods or services be obtained without 
full and open competition. The justification must explain why full and 
open competition is not feasible and must be submitted with the 
requisition or request for contract.
    (i) Justifications in excess of the simplified acquisition threshold 
shall be in the form of a separate, self-contained document, prepared in 
accordance with FAR 6.303 and 306.303, and called a ``JOFOC'' 
(Justification for Other Than Full and Open Competition). Justifications 
at or below the simplified acquisition threshold may be in the form of a 
paragraph or paragraphs contained in the requisition or request for 
contract.
    (ii) Justifications, whether over or under the simplified 
acquisition threshold, shall fully describe what is to be acquired, 
offer reasons which go beyond inconvenience, and explain why it is not 
feasible to obtain competition. The justifications shall be supported by 
verifiable facts rather than mere opinions. Documentation in the 
justification should be sufficient to permit an individual with 
technical competence in the area to follow the rationale.
    (iii) Sole source justifications using the Federal Supply Schedule 
shall include the content listed in FAR 6.303-2.

[[Page 19]]

    (b) Preliminary arrangements or agreements with the proposed 
contractor shall have no effect on the rationale used to support an 
acquisition for other than full and open competition.

[71 FR 76493, Dec. 20, 2006]



Sec. 306.303-2   Content.

    (a)(1) Each justification shall include the name of the program 
office; the name, address, and phone number of the Project Officer; and 
project identification, such as the authorizing program legislation, to 
include citations or other internal program identification data such as 
title, contract number, etc.
    (2) The description may be in the form of a statement of work, 
purchase description, or specification. A statement is to be included to 
explain whether the acquisition is an entity in itself, whether it is 
one in a series, or part of a related group of acquisitions.
    (c) JOFOCs shall be signed by the Project Officer, the Project 
Officer's immediate supervisor, the Contracting Officer, and the 
approving official (if the approving official is not the Contracting 
Officer).

[71 FR 76494, Dec. 20, 2006]



Sec. 306.304  Approval of the justification.

    (a)(2) The competition advocates are listed in 306.501. This 
authority is not delegable.
    (3) The competition advocate shall exercise this approval authority, 
except where the individual designated as the competition advocate does 
not meet the requirements of FAR 6.304 (a)(3)(ii). This authority is not 
delegable.
    (4) The senior procurement executive of the Department is the Deputy 
Assistant Secretary for Acquisition Management and Policy. This 
designation has been made pursuant to the OFPP Act (41 U.S.C. 
414(c)(2)(B).
    (c) A class justification shall be processed the same as an 
individual justification.

[71 FR 76494, Dec. 20, 2006]

                   Subpart 306.5_Competition Advocates



Sec. 306.501  Requirement.

    The Department's competition advocate is the Director, Strategic 
Acquisition Service, Program Support Center (PSC). The competition 
advocates for each of the Department's contracting activities are as 
follows:

AHRQ--Director, Office of Performance Accountability, Resources and 
Technology
CDC--Chief Information Officer
CMS--Chief Operating Officer
FDA--Chief, Office of Shared Services
HRSA--Associate Administrator, Office of Administration and Financial 
Management
IHS--Director, Office of Management Services
NIH--Senior Scientific Advisor for Extramural Research, Office of 
Extramural Research (R&D) and Senior Advisor to the Director (Other than 
R&D)
PSC--Director, Strategic Acquisition Service
SAMHSA--Executive Officer

[71 FR 76494, Dec. 20, 2006]

                      PART 307_ACQUISITION PLANNING

                   Subpart 307.1_Acquisition Planning

Sec.

Sec. 307.104 General procedures.

Sec. 307.105 Contents of written acquisition plans.

Sec. 307.170 Program training requirements.

Sec. 307.170-1 Training policy exceptions.

Sec. 307.170-2 Training course prerequisites.

Sec. 307.170-3 Earned value training requirement for IT program/project 
          managers and IT CORs/COTRs.

Sec. 307.170-4 Required training in HHS' portfolio management tool.

Sec. 307.170-5 Maintenance/refresher training requirement for program/
          project managers and CORs/COTRs.

Sec. 307.170-6 Warranting of Other Transaction Officers for Other 
          Transactions.

Sec. 307.170-7 Training requirements for Other Transaction Officers.

Sec. 307.170-8 Appointment of an Other Transaction Officer Technical 
          Representative for an Other Transaction.

Sec. 307.170-9 Training requirement for an Other Transaction Officer 
          Technical Representative.

     Subpart 307.70_Considerations in Selecting an Award Instrument


Sec. 307.7000 Scope of subpart.

[[Page 20]]


Sec. 307.7001 Distinction between acquisition and assistance.

Sec. 307.7002 Procedures.

                  Subpart 307.71_Requests for Contract


Sec. 307.7100 Scope of subpart.

Sec. 307.7101 General.

Sec. 307.7102 Procedures.

Sec. 307.7103 Responsibilities.

Sec. 307.7104 Transmittal.

Sec. 307.7105 Format and content.

Sec. 307.7106 Statement of work.

Sec. 307.7107 Review.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4226, Jan. 17, 2001, unless otherwise noted.

                   Subpart 307.1_Acquisition Planning



Sec. 307.104  General procedures.

    (a) Each contracting activity shall prepare an Annual Acquisition 
Plan (AAP). The AAP is a macro plan, containing a list of anticipated 
contract actions over the simplified acquisition threshold and their 
associated funding, as well as the aggregate planned dollars for 
simplified acquisitions by quarter, developed for each fiscal year. The 
AAP shall conform to reasonable budget expectations and shall be 
reviewed at least quarterly and modified as appropriate. The HCA or the 
CCO shall obtain this information from the program planning/budget 
office of the contracting activity and use the AAP to provide necessary 
reports and monitor the workload of the contracting office. For contract 
actions, the plan shall contain, at a minimum:
    (1) A brief description (descriptive title, perhaps one or two 
sentences if necessary);
    (2) Estimated award amount;
    (3) Requested award date;
    (4) Name and phone number of contact person (usually the Project 
Officer);
    (5) Other information required for OPDIV needs.
    (b) Once the AAP is obtained from the program planning/budget 
office, the Contracting Officer/Contract Specialist shall initiate 
discussions with the assigned Project Officer for each planned 
negotiated acquisition over $100,000 except for:
    (1) Acquisitions made under interagency agreements, and
    (2) Contract modifications which exercise options, make changes 
authorized by the Changes clause, or add funds to an incrementally 
funded contract. (The HCA may prescribe procedures for contract actions 
not covered by this subpart.)
    (c) The purpose of the discussions between the Contracting and 
Project Officers is to develop an individual acquisition planning 
schedule and to address areas that will need to be covered in the 
request for contract (RFC), including clearances, acquisition strategy, 
sources, etc. The Project Officer must either have a statement of work 
(SOW) ready at this time or must discuss in more detail the nature of 
the services/supplies that will be required.
    (d) Standard lead-times for processing various types of acquisitions 
and deadlines for submission of acceptable RFCs (that is, RFCs which 
include all required elements such as clearances, funding documents, and 
an acceptable SOW) for award in a given fiscal year shall be established 
by the HCA or designee not lower than the CCO.
    (e) The outcome of the discussions referenced in paragraph (c) of 
this section between the Project Officer and the Contracting Officer/
Contract Specialist will be an agreement concerning the dates of 
significant transaction-specific acquisition milestones, including the 
date of submission of the RFC to the Contracting Officer. This milestone 
schedule document will be prepared with those dates and will be signed 
by the Project Officer and the Contracting Officer. The milestones 
cannot be revised except by mutual agreement of these same individuals. 
If the planning schedule indicates the need to obtain approval of a 
Justification for Other than Full and Open Competition, the HCA or CCO 
must sign the milestone agreement. This document shall be retained in 
the contract file. All other considerations that will affect the 
acquisition (technical, business, management) shall be addressed in the 
RFC (see 307.71).

[71 FR 76494, Dec. 20, 2006]

[[Page 21]]



Sec. 307.105  Contents of written acquisition plans.

    The written acquisition plan required by FAR 7.105 must be contained 
in the request for contract, as specified in subpart 307.71, and is the 
final product of the planning process.



Sec. 307.170  Program training requirements.

    (a) HHS will maintain a program for certifying employees before they 
may be considered eligible for appointment as a program/project manager 
or COR/COTR.
    (b) All HHS program/project managers, alternate program/project 
managers, CORs/COTRs, alternate CORs/COTRs, and at least fifty percent 
of the HHS program personnel performing the function of technical 
proposal evaluator on a technical evaluation team or panel for a 
competitively solicited HHS contract, shall have successfully completed 
the Department's ``Basic Project Officer'' course, or an equivalent 
course, before assuming the duties of their designated role, or take the 
next available class. This requirement applies to the initial technical 
proposal evaluation and any subsequent technical evaluations that may be 
required. (*Peer and objective reviewers are excluded from these 
requirements). Course equivalency for the ``Basic Project Officer'' 
course will be determined by the ASAM/OAMP. The Contracting Officer is 
responsible for ensuring that the program/project manager, COR/COTR, and 
proposal evaluators have successfully completed the required training. 
Non-information technology (IT) program/project managers and non-IT 
CORs/COTRs who have successfully completed the appropriate ``Basic 
Project Officer'' course, or an equivalent course, are highly encouraged 
to take the Department's one-day course entitled ``Early Warning Project 
Management System Workshop,'' or an equivalent Earned Value course. 
Program/Project managers and CORs/COTRs are highly encouraged to take 
the Department's ``Writing Statements of Work'' course, or an equivalent 
course. Peer and objective reviewers are excluded from these 
requirements. (*The peer review process pertains specifically to NIH in 
the peer review of applications for grants and contracts. Applications 
are evaluated by a peer review group composed of scientists from the 
extramural research community.) All courses are offered through HHS 
University.

[71 FR 76495, Dec. 20, 2006]



Sec. 307.170-1  Training policy exceptions.

    In the event there is an urgent requirement for a specific 
individual to serve as a program/project manager and COR/COTR (or 
alternate program/project manager and alternate COR/COTR) and that 
individual has not successfully completed the prerequisite training 
course(s), the HCA (not delegable) may waive the training requirement 
and authorize the individual to perform the project duties, provided 
that:
    (a) The individual first meets with the cognizant Contracting 
Officer to review the HHS ``Project Officer's Contracting Handbook'' to 
discuss the important aspects of the contracting-program office 
relationship as appropriate to the circumstances; and
    (b) The individual attends the next scheduled ``Basic Project 
Officer'' course, or an equivalent course, and, for those current and 
proposed IT program/project managers, as well as alternate IT program/
project managers and IT CORs/COTRs (as well as alternate CORs/COTRs) 
assigned to HHS IT projects (including those designated as major or 
tactical by HHS), the next ``Early Warning Project Management System 
Workshop.''

[71 FR 76495, Dec. 20, 2006]



Sec. 307.170-2  Training course prerequisites.

    (a) Project officers. (1) Newly appointed project officers, and 
project officers with less than three years experience and no previous 
related training, are required to take the appropriate ``Basic Project 
Officer'' course. (The grade level for project officers attending the 
course should be GS-7 and above.) All project officers are encouraged to 
take the appropriate ``Writing Statements of Work'' course.

[[Page 22]]

    (2) Project officers with more than three years experience, and 
project officers with less than three years experience who have 
successfully completed the appropriate basic course, are qualified (and 
encouraged) to take the ``Advanced Project Officer'' course.
    (3) Project Officers on HHS projects for which HHS or OMB requires 
an Exhibit 300 [under OMB Circular A-11, part 7] must successfully 
complete either HHS'' ``Early Warning Project Management System 
Workshop'' or an equivalent Earned Value Management course (see 
paragraph 307.170(c)).
    (4) Additional information on prerequisites for attendance of these 
courses may be found in the ``DHHS Acquisition Training and 
Certification Program Handbook.''
    (b) Technical proposal evaluators. Technical proposal evaluators, 
regardless of experience, are required to take the appropriate ``Basic 
Project Officer'' course or its equivalent. Upon successful completion 
of the basic course, it is recommended that they take the appropriate 
``Advanced Project Officer'' course. Peer and objective reviewers are 
excluded from these requirements.

[66 FR 4226, Jan. 17, 2001, as amended at 70 FR 40, Jan. 3, 2005]



Sec. 307.170-3  Earned value training requirement for IT program/project 

managers and IT CORs/COTRs.

    All current and proposed IT program/project managers, alternate IT 
program/project managers, IT CORs/COTRs, and alternate CORs/COTRs 
assigned to HHS IT projects (including those IT projects designated as 
major or tactical), regardless of dollar threshold, must successfully 
complete the Department's (offered through HHS University) one-day 
course entitled ``Early Warning Project Management System Workshop,'' or 
an equivalent Earned Value training course. Course equivalency will be 
determined jointly by the ASAM/OAMP and the HHS Office of the Chief 
Information Officer.

[71 FR 76495, Dec. 20, 2006]



Sec. 307.170-4  Reqired training in HHS' portfolio management tool.

    All current and proposed IT program/project managers, as well as 
alternate IT program/project managers and IT CORs/COTRs (as well as 
alternate IT CORs/COTRs), regardless of dollar threshold, must 
successfully complete training in HHS' portfolio management tool 
(contact the HHS Office of the Chief Information Officer for additional 
information).

[71 FR 76495, Dec. 20, 2006]



Sec. 307.170-5  Maintenance/refresher training requirement for program/

project managers and CORs/COTRs.

    Program/Project Managers and CORs/COTRs who monitor one or more 
contracts are required to take 40 CLPs each year.

[71 FR 76495, Dec. 20, 2006]



Sec. 307.170-6  Warranting of Other Transaction Officers for Other 

Transactions.

    (a) Other Transaction (OT) Officers shall possess the qualifications 
necessary to ensure that OTs are in compliance with applicable laws and 
regulations. The ASAM/OAMP will have the sole authority to warrant OT 
Officers at HHS. To receive a warrant as an HHS OT Officer, the 
individual must be a Contracting Officer, preferably with an unlimited 
warrant, with a Federal Acquisition Certification in Contracting (FAC-C) 
Level III, or a Level III or IV certified Grants Officer within HHS. 
Nominations for appointment of OT Officers shall be submitted to the 
Head of Contracting Activity in writing through appropriate 
organizational channels for review. The nomination package shall include 
the following:
    (1) A completed Appendix A (``OT Officer's Warrant Application 
Form'') of HHS Other Transaction Authority Guidebook;
    (2) A recommendation from the employee's immediate supervisor 
providing justification for the appointment of an HHS OT Officer;
    (3) Current resume/OF 612/SF 171 and/or other documentation 
describing the employee's experience, education, and training relevant 
to the position for which warrant authority is being sought;
    (4) A copy of the employee's most recent performance appraisal;
    (5) Type of work to be performed under the warrant, i.e., executing 
OTs;

[[Page 23]]

    (6) A copy of the certificate issued under the HHS Acquisition 
Certification Program indicating the employee's current certification 
level and a copy of previous warrant certificate, if applicable; or a 
copy of the certificate issued under the HHS Grants Certification 
Program, if applicable; and
    (7) Proof of successful completion of the ``Cooperative Agreements, 
CRADAs & Other Transactions'' course taught by Federal Publications 
Seminars, or an equivalent course.
    (b) For additional information, see http://www.knownet.hhs.gov/
acquisition/hhs--epp--postings/HHSGuidebook1-OTAMarch2005.doc.

[71 FR 76495, Dec. 20, 2006]



Sec. 307.170-7  Training requirements for Other Transaction Officers.

    OT Officers must successfully complete the ``Cooperative Agreements, 
CRADAs & Other Transactions'' course, or an equivalent course, prior to 
appointment as an OT Officer. Grants Officers who serve as OT Officers 
are required to have successfully completed the following courses: CON 
110 (``Mission Support Planning''); CON 111 (``Mission Strategy 
Execution,''); CON 112 (``Mission Performance,'') or CON 120 (``Mission 
Focused Contracting.''), or equivalent courses prior to being appointed 
as an OT Officer. The HHS OTA Board will determine course equivalency.

[71 FR 76495, Dec. 20, 2006]



Sec. 307.170-8  Appointment of an Other Transaction Officer Technical 

Representative for an Other Transaction.

    The program office nominates the Other Transaction Officer Technical 
Representative (OTR). The OT Officer prepares an OTR delegation 
memorandum that describes the OTR's authority and assigns the OTR 
specific responsibilities, with limitations of authority, in writing. 
The OTR represents the OT Officer only to the extent delegated in the 
written appointment and does not have the authority to change the terms 
and conditions of the OT.

[71 FR 76495, Dec. 20, 2006]



Sec. 307.170-9  Training requirement for an Other Transaction Officer 

Technical Representative.

    (a) Program personnel selected to serve as an OTR or an alternate 
OTR assigned to an OT, and at least fifty percent of the technical 
evaluators that review the initial and any subsequent proposals or 
revisions thereof, shall successfully complete the Department's ``Basic 
Project Officer'' course, or an equivalent course prior to being 
appointed. Determination of course equivalency shall be made by the HHS 
OTA Board.
    (b) In addition to the Department's required ``Basic Project 
Officer'' course, the OTR or alternate OTR assigned to an OT, and at 
least fifty percent of the technical evaluators that review the initial 
and any subsequent proposals or revisions thereof, shall successfully 
complete the ``Cooperative Agreements, CRADAs & Other Transactions'' 
course, or an equivalent course, prior to being appointed and prior to 
assuming job duties associated with the OT.
    (c) Refresher training in the policies and procedures of awarding 
cooperative agreements, CRADAs and OTs is required every three years.

[71 FR 76495, Dec. 20, 2006]

     Subpart 307.70_Considerations in Selecting an Award Instrument



Sec. 307.7000  Scope of subpart.

    This subpart provides guidance on the appropriate selection of award 
instruments consistent with 31 U.S.C. 6301-6308. This subpart explains 
the use of the contract as the award instrument for acquisition 
relationships, and the grant or cooperative agreement as the instrument 
for assistance relationships. This subpart provides guidance for 
determining whether to use the acquisition or assistance process to 
fulfill program needs.



Sec. 307.7001  Distinction between acquisition and assistance.

    (a) 31 U.S.C. 6301-6308 requires the use of contracts to acquire 
property or services for the direct benefit or use of the Government and 
grants or cooperative agreements to transfer money,

[[Page 24]]

property, services, or anything of value to recipients to accomplish a 
public purpose of support or stimulation authorized by Federal statute.
    (b) A contract is to be used as the legal instrument to reflect a 
relationship between the Federal Government and a recipient whenever:
    (1) The principal purpose of the instrument is the acquisition, by 
purchase, lease, or barter, of property or services for the direct 
benefit or use of the Federal Government; or
    (2) The Department determines in a specific instance that the use of 
a type of contract is appropriate. That is, it is determined in a 
certain situation that specific needs can be satisfied best by using the 
acquisition process. However, this authority does not permit 
circumventing the criteria for use of acquisition or assistance 
instruments. Use of this authority is restricted to extraordinary 
circumstances and only with the prior approval of the Deputy Assistant 
Secretary for Acquisition Management and Policy (DASAMP).
    (c) A grant or cooperative agreement is to be used as the legal 
instrument to reflect a relationship between the Federal Government and 
a recipient whenever the principal purpose of the relationship is the 
transfer of money, property, services, or anything of value to the 
recipient to accomplish a public purpose of support or stimulation 
authorized by Federal statute.
    (1) A grant is the legal instrument to be used when no substantial 
involvement is anticipated between the Department and the recipient 
during performance of the contemplated activity.
    (2) A cooperative agreement is the legal instrument to be used when 
substantial involvement is anticipated between the Department and the 
recipient during performance of the contemplated activity.
    (d) As a general rule, contracts are to be used for the following 
purposes:
    (1) Evaluation (including research of an evaluative nature) of the 
performance of Government programs or projects or grantee activity 
initiated by the funding agency for its direct benefit or use.
    (2) Technical assistance rendered to the Government, or on behalf of 
the Government, to any third party, including those receiving grants or 
cooperative agreements.
    (3) Surveys, studies, and research which provide specific 
information desired by the Government for its direct activities, or for 
dissemination to the public.
    (4) Consulting services or professional services of all kinds if 
provided to the Government or, on behalf of the Government, to any third 
party.
    (5) Training projects where the Government selects the individuals 
or specific groups whose members are to be trained or specifies the 
content of the curriculum (not applicable to fellowship awards.)
    (6) Planning for Government use.
    (7) Production of publications or audiovisual materials required 
primarily for the conduct of the direct operations of the Government.
    (8) Design or development of items for Government use or pursuant to 
agency definition or specifications.
    (9) Conferences conducted on behalf of the Government.
    (10) Generation of management information or other data for 
Government use.

[66 FR 4226, Jan. 17, 2001, as amended at 71 FR 76496, Dec. 20, 2006]



Sec. 307.7002  Procedures.

    (a) OPDIV program officials should use existing budget and program 
planning procedures to propose new activities and major changes in 
ongoing programs. It is the responsibility of these program officials to 
meet with the HCA and the principal grants management official, or their 
designees, to distinguish the relationships and determine whether award 
is to be made through the acquisition process or assistance process. 
This determination should be made prior to the time when the annual 
acquisition plan is reviewed and approved so that the plan will reflect 
all known proposed contract actions. The cognizant contracting officer 
will confirm the appropriateness of the use of the contract instrument 
when reviewing the request for contract.
    (b) Shifts from one award instrument to another must be fully 
documented in the appropriate files to show a fundamental change in 
program purpose

[[Page 25]]

that unequivocally justifies the rationale for the shift.
    (c) OPDIVs must ensure that the choice of instrument is determined 
in accordance with 31 U.S.C. 6301-6308 and applicable departmental 
policies. If, however, there are major individual transactions or 
programs which contain elements of both acquisition and assistance in 
such a way that they cannot be characterized as having a principal 
purpose of one or the other, guidance should be obtained from the 
Director, OAMP, through normal channels, before proceeding with a 
determination.
    (d) Any public notice, program announcement, solicitation, or 
request for applications or proposals must indicate whether the intended 
relationship will be one of acquisition or assistance and specify the 
award instrument to be used.

                  Subpart 307.71_Requests for Contract



Sec. 307.7100  Scope of subpart.

    This subpart prescribes the format and contents of the request for 
contract (RFC) and provides procedures for its preparation and 
submission.



Sec. 307.7101  General.

    The program office's preparation of the RFC and submission to the 
contracting office completes the presolicitation phase of the 
acquisition planning process and commences the solicitation phase. The 
RFC is the formal document which initiates the preparation of the 
solicitation by the contracting office and sets the acquisition process 
in motion. It is the result of the planning by the project officer and 
contracting officer and contains much of the pertinent information 
necessary for the development of a sound, comprehensive solicitation.



Sec. 307.7102  Procedures.

    The program office should submit the RFC to the contracting office 
no later than the date agreed to by the contracting officer and the 
project officer in the milestone schedule (see 307.104(h)), unless a 
revised due date has been established by mutual agreement.



Sec. 307.7103  Responsibilities.

    (a) It is the responsibility of the project officer to prepare the 
RFC so that it complies with the requirements of this subpart and any 
OPDIV guidance issued in accordance with this subpart.
    (b) Prior to the submission of the RFC to the contracting office, 
the head of the program office sponsoring the project shall review the 
RFC to ensure that all required information is provided in the 
prescribed format, and a technical review of the statement of work has 
been made. The level and extent of the technical review is to be 
commensurate with the estimated cost, importance, and complexity of the 
proposed acquisition, and must be thorough enough to ensure that vague 
and ambiguous language is eliminated, the statement of work is 
structured by phases or tasks, if appropriate, and methods are available 
for assessing the contractor's technical, cost, and delivery 
performance.



Sec. 307.7104  Transmittal.

    The RFC must be conveyed to the contracting office by use of a cover 
memorandum. The cover memorandum must be signed by the head of the 
sponsoring program office and include both a statement attesting to the 
conclusiveness of the review described in 307.7103(b) and a list 
identifying all attachments to the RFC.

[71 FR 76496, Dec. 20, 2006]



Sec. 307.7105  Format and content.

    The Department is in the process of standardizing a format for the 
RFC. In the interim, the information in paragraph (a) of this section 
must be included. Paragraph (b) contains information that must also be 
included if applicable.
    (a) The RFC must include:
    (1) Purpose of the contract. A brief, general description of the 
requirement, including the citation of the legislation which authorizes 
the program or project, and a statement as to the intended purpose/use 
of the proposed contract.

[[Page 26]]

    (2) Period of performance. The number of months (or other time 
period) required for total performance and, if applicable, for each 
phase of work indicated in the statement of work, as well as the 
proposed starting date.
    (3) Estimated cost and funds citation. An estimate of the total cost 
of the proposed contract and, if applicable, the estimate for each phase 
indicated in the statement of work. The project officer must provide a 
cost breakdown of all contributing cost factors, an estimate of the 
technical staff hours, direct material, subcontracting, travel, etc., 
and may consult with contracting and cost advisory personnel in 
developing this information. This section must include the certification 
of funds availability for the proposed acquisition, along with the 
appropriation and accounting information citations. When funds for the 
proposed acquisition are not currently available for obligation but are 
anticipated, a statement of intent to commit funds from the financial 
management officer shall be included in lieu of the certification of 
funds availability. (Contracts cannot be awarded unless funds are 
available, but see FAR 32.703-2).
    (4) Specification, purchase description, or statement or work. A 
description of the work to be performed that may be in the form of a 
specification, purchase description, or statement of work. Guidance 
concerning the statement of work and its contents is contained in 
307.7106. Use of the specification is primarily limited to supply or 
service contracts where the material end item or service to be delivered 
is well defined by the Government. To the maximum extent possible, 
requirements should be defined as performance-based statements of work 
that focus on outcomes or results. If the RFC for a service contract is 
not utilizing a performance-based statement of work, with associated 
measures and a quality surveillance plan, the rationale for this 
determination must be documented. If a performance-based service 
contract is utilized, the RFC must detail the performance standards that 
must be met, the quality surveillance plan that will be implemented and 
the performance incentives to be used, if applicable.
    (5) Schedule of deliverables/reporting requirements. A description 
of what is to be delivered, including, if applicable, technical and 
financial progress reports and any final report, and the required date 
of delivery for each deliverable. Reporting requirements should be 
tailored to the instant acquisition and should not be unnecessarily 
extensive or detailed. All delivery and reporting requirements shall 
include the quantities, the place of delivery, and time of delivery.
    (6) Sources for solicitation. A list of known potential sources by 
name, size, type of ownership, and mailing address. The project officer 
is encouraged to use trade and professional journals and publications 
and conduct a thorough market research to identify new prospective 
sources to supplement the list of known sources. Efforts to identify 
set-aside possibilities, e.g., 8(a), HUBZone, veteran-owned, service-
disabled veteran-owned, and small business, and efforts to identify 
sources such as small disadvantaged and women-owned small businesses 
must be documented.
    (7) Project officer and alternate. The project officer's name, 
title, organization, mailing address, and telephone number, along with 
the same data for the project officer's alternate, and a statement that 
these individuals have completed the Department's project officer 
training course (see 307.l70)
    (b) The RFC must include, if applicable to the acquisition:
    (1) Background and need. The background, history, and necessity for 
the proposed contract. This section is to include prior, present, and 
planned efforts by the program office in the same or related areas, and 
a description of efforts by other departmental activities and Federal 
agencies in the same or related program areas, if known. In addition, 
specific project information, such as the relevance or contribution to 
overall program objectives, reasons for the need, priority, and project 
overlap are to be provided.
    (2) Reference materials. A list, by title and description, of study 
reports, plans, drawings, and other data to be made available to 
prospective offerors for use in preparation of proposals and/

[[Page 27]]

or the contractor for use in performance of the contract. The project 
officer must indicate whether this material is currently available or 
when it will be available, and how it may be accessed by potential 
offerors.
    (3) Technical evaluation criteria and instructions. Technical 
evaluation criteria, which have been developed based on the requirements 
of the specific project, and any instructions and information which will 
assist in the preparation of prospective offerors' technical proposals. 
Evaluation factors may include understanding of the problem, technical 
approach, experience, personnel, facilities, etc. Criteria areas 
discussed in the statement of work and the relative order of importance 
or weights assigned to each of these areas for technical evaluation 
purposes must be identified.
    (4) Special program clearances or approvals. The following special 
program clearances or approvals should be reviewed for applicability to 
each acquisition. Those which are applicable should be addressed during 
the planning discussions between the Project Officer and Contracting 
Officer/Contract Specialist (see 307.104(c)) and immediate action should 
be initiated by the Project Officer to obtain the necessary clearances 
or approvals. The Contracting Officer/Contract Specialist shall provide 
a comprehensive checklist of these and any OPDIV special approvals, 
clearances, and requirements to the program office. If the approval or 
clearance has been requested and is being processed at the time of RFC 
submission, a footnote to this effect, including all pertinent details, 
must be included in this section.
    (i) Commercial activities. (OMB Circular No. A-76). An RFC must 
contain a statement as to whether the proposed solicitation is or is not 
to be used as part of an OMB Circular No. A-76 public-private cost 
comparison. (See OMB Circular No. A-76, Performance of Commercial 
Activities.)
    (ii) Printing. The acquisition of printing and high volume 
duplicating by contract is prohibited unless it is authorized by the 
Joint Committee on Printing of the U.S. Congress. Procedures to be 
followed are contained in the ``Government Printing and Binding 
Regulations'' and the HHS Printing Management Manual and FAR subpart 
8.8.
    (iii) Paperwork Reduction Act. Under the Paperwork Reduction Act of 
1995, a Federal agency shall not collect information or sponsor the 
collection of information from ten or more persons (other than Federal 
employees acting within the scope of their employment) unless, in 
advance, the agency has submitted a request for Office of Management and 
Budget (OMB) review, to the OMB, and the OMB has approved the proposed 
collection of information. Procedures for the approval may be obtained 
by contacting the OPDIV reports clearance officer. (See 5 CFR part 
1320).
    (iv) Publications. All projects that will result in contracts which 
include publications development (print products, electronic bulletin 
boards, posting on the internet) require review and approval by the 
Office of the Assistant Secretary for Public Affairs (OASPA). Form HHS-
615, Publication Planning and Clearance Request, must be forwarded to 
OASPA through the OPDIV public affairs officer. Publications are defined 
in Chapter 5-00-15 of the Public Affairs Management Manual.
    (v) Public affairs services. Projects for the acquisition of public 
affairs services in excess of $5,000 must be submitted to the Office of 
the Assistant Secretary for Public Affairs (OASPA) for review and 
approval on Form HHS-524, Request for Public Affairs Services Contract.
    (vi) Audiovisual. All projects which will result in contracts which 
include audiovisuals, regardless of the audio, video, or audiovisual 
medium employed, require review and approval by the Office of the 
Assistant Secretary for Public Affairs (OASPA). Form HHS-524A, 
Publication Planning and Clearance Request, must be forwarded to OASPA 
through the OPDIV public affairs officer. Audiovisuals are defined in 
chapter 6-00-15 of the Public Affairs Management Manual.
    (vii) Privacy Act (5 U.S.C. 552a). Whenever the Department contracts 
for the design, development, operation, or maintenance of a system of 
records on individuals on behalf of the Department to accomplish a 
departmental

[[Page 28]]

function, the Privacy Act is applicable. The program official, after 
consultation with the activity's Privacy Act Coordinator and the Office 
of General Counsel, as necessary, shall include a statement in the 
request for contract as to the applicability of the Act. Whenever an 
acquisition is subject to the Act, the program official prepares a 
``system notice'' and has it published in the Federal Register. (See HHS 
Privacy Act regulation, 45 CFR part 5b; FAR subpart 24.1 and subpart 
324.1.)
    (viii) Foreign research. All foreign research contract projects to 
be conducted in a foreign country and financed by HHS funds (U.S. 
dollars) must have clearance by the Department of State with respect to 
consistency with foreign policy objectives. This clearance should be 
obtained prior to negotiation. Procedures for obtaining this clearance 
are set forth in the HHS General Administration Manual, Chapter 20-60.
    (5) Identification and disposition of data. Identification of the 
data expected to be generated by the acquisition and an indication of 
whether the data are to be delivered to the Department or to be retained 
by the contractor is required. The project officer must also include 
information relative to the use, maintenance, disclosure, and 
disposition of data. The project officer must include a statement as to 
whether or not another acquisition, based upon the data generated by the 
proposed acquisition, is anticipated.
    (6) Government property. If known, the type of Government property, 
individual items, and quantities of Government property to be furnished 
to, or allowed to be acquired by, the resultant contractor should be 
indicated. The project officer must specify when the Government property 
is to be made available.
    (7) Special terms and conditions. Any suggested special terms and 
conditions not already covered in the statement of work.
    (8) Justification for other than full and open competition. If the 
proposed acquisition is to be awarded using other than full and open 
competition, a justification prepared in accordance with FAR subpart 6.3 
and subpart 306.3 is required.

[66 FR 4226, Jan. 17, 2001, as amended at 70 FR 40, Jan. 3, 2005; 71 FR 
76496, Dec. 20, 2006]



Sec. 307.7106  Statement of work.

    (a) General. A statement of work (SOW) describes the work or 
services to be performed in reaching an end result without describing 
the method that will be used unless the method of performance is 
critical or required in order to obtain successful performance. The SOW 
should be clear and concise and must completely define the 
responsibilities of both the contractor and the Government. The SOW 
should be worded to make more than one interpretation virtually 
impossible.
    (b) Term (level of effort) vs. completion work statement. Careful 
distinctions must be drawn between term (level of effort) SOWs, which 
essentially require the furnishing of technical effort and which may 
include a report thereof, and completion type work statements, which 
require development of tangible items designed to meet specific 
performance and/or design characteristics. (See FAR 16.306(d) for 
distinction).
    (1) Term (or level of effort). A term or level of effort type SOW is 
appropriate for research where one seeks to discover the feasibility of 
later development, or to gather general information. A term or level of 
effort type SOW may only specify that some number of labor-hours be 
expended on a particular course of research, or that a certain number of 
tests be run, without reference to any intended conclusion.
    (2) Completion. A completion type SOW is appropriate to development 
work where the feasibility of producing an end item is already known. A 
completion type SOW may describe what is to be achieved through the 
contracted effort, such as development of new methods, new end items, or 
other tangible results.
    (c) Phasing. Individual research, development, or demonstration 
projects frequently lie well beyond the present state of the art and 
entail procedures and techniques of great complexity and difficulty. 
Under these circumstances, a contractor, no matter how carefully 
selected, may be unable to deliver the desired result. Moreover, the job 
of

[[Page 29]]

evaluating the contractor's progress is often difficult. Such a contract 
is frequently phased and often divided into stages of accomplishment, 
each of which must be completed and approved before the contractor may 
proceed to the next. Phasing makes it necessary to develop methods and 
controls, including reporting requirements for each phase of the 
contract and criteria for evaluation of the report submitted, that will 
provide, at the earliest possible time, appropriate data for making 
decisions relative to future phases. A phased contract may include 
stages of accomplishment such as research, development, and 
demonstration. Within each phase, there may be a number of tasks which 
should be included in the SOW. When phases of work can be identified, 
the SOW will provide for phasing and the request for proposals will 
require the submission of proposed costs by phases. The resultant 
contract will reflect costs by phases, require the contractor to 
identify incurred costs by phases, establish delivery schedules by 
phase, and require the written acceptance of each phase. The provisions 
of the Limitation of Cost clause shall apply to the estimated cost of 
each phase. Contractors shall not be allowed to incur costs for phases 
which are dependent upon successful completion of earlier phases until 
written acceptance of the prior work is obtained from the contracting 
officer.
    (d) Elements of the SOW. The elements of the SOW will vary with the 
objective, complexity, size, and nature of the acquisition. In general, 
it should include the following:
    (1) Purpose of the project. This includes a general description of 
the objectives of the project and the desired results.
    (2) Background information. This includes a brief history of the 
project and the importance of the project to the overall program 
objectives.
    (3) A detailed description of the technical requirements. The 
statement of work should provide sufficient detail to accurately reflect 
the Government's requirement. It should state what is to be done without 
prescribing the method to be used and should include performance 
standards. The statement of work may be broken down into tasks and 
subtasks. The degree of breakout depends on the size and complexity of 
the project. The statement of work should indicate whether the tasks are 
sequential or concurrent.
    (4) Reference material. All reference material to be used in the 
conduct of the project that indicates how the work is to be carried out 
must be identified. Applicability should be explained, and a statement 
made as to where the material can be obtained.
    (5) Level of effort. When a level of effort is required, the number 
and type of personnel required should be stated. If known, the type and 
degree of expertise should be specified.
    (6) Special requirements. (as applicable). An unusual or special 
contractual requirement, which would impact on contract performance, 
should be included as a separate section.
    (7) Deliverables reporting requirements. All deliverables and/or 
reports must be clearly and completely described. Include the timeframe 
for completion, the format, and the number of copies.

[66 FR 4226, Jan. 17, 2001, as amended at 71 FR 76496, Dec. 20, 2006]



Sec. 307.7107  Review.

    Upon receipt of the RFC, the contracting officer shall review its 
contents to ensure that all pertinent information has been provided by 
the program office and that it includes an acceptable SOW. If pertinent 
information is missing or the SOW is inadequate, the contracting officer 
shall obtain or clarify the information as soon as possible so that the 
acquisition schedule can be met. If the program office delays furnishing 
the information or clarification, the contracting officer should notify 
the head of the sponsoring program office, in writing, of the possible 
slippage in the acquisition schedule and the need for an expeditious 
remedy. The contracting officer should also notify the chief of the 
contracting office. A program office's or project officer's continued 
failure to adhere to agreed on milestones should also be reported to the 
head of the contracting activity.

[[Page 30]]

                   PART 309_CONTRACTOR QUALIFICATIONS

         Subpart 309.4_Debarment, Suspension, and Ineligibility

Sec.

Sec. 309.403 Definitions.

Sec. 309.404 List of parties excluded from Federal procurement and 
          nonprocurement programs.

Sec. 309.405 Effect of listing.

Sec. 309.406 Debarment.

Sec. 309.406-3 Procedures.

Sec. 309.407 Suspension.

Sec. 309.407-3 Procedures.

Sec. 309.470 Reporting of suspected causes for debarment, suspension, or 
          the taking of evasive actions.

Sec. 309.470-1 Situations where reports are required.

Sec. 309.470-2 Contents of reports.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4231, Jan. 17, 2001, unless otherwise noted.

         Subpart 309.4_Debarment, Suspension, and Ineligibility



Sec. 309.403  Definitions.

    Acquiring agency's head or designee, as used in the FAR, shall mean, 
unless otherwise stated in this subpart, the head of the contracting 
activity. Acting in the capacity of the acquiring agency's head, the 
head of the contracting activity may make the required justifications or 
determinations, and take the necessary actions, specified in FAR 9.405, 
9.406, and 9.407 for his or her respective activity, but only after 
obtaining the written approval of the debarring or suspending official, 
as the case may be.
    Debarring official means the Assistant Secretary for Administration 
and Management, or his/her designee.
    Initiating official means either the contracting officer, the head 
of the contracting activity, the Deputy Assistant Secretary for 
Acquisition Management and Policy, or the Inspector General.
    Suspending official means the Assistant Secretary for Administration 
and Management, or his/her designee.

[71 FR 76497, Dec. 20, 2006]



Sec. 309.404  List of parties excluded from Federal procurement and 

nonprocurement programs.

    (c) The Office of Acquisition Management and Policy (OAMP) shall 
perform the actions required by FAR 9.404(c).
    (4) OAMP shall maintain all documentation submitted by the 
initiating official recommending the debarment or suspension action and 
all correspondence and other pertinent documentation generated during 
the OAMP review.

[71 FR 76497, Dec. 20, 2006]



Sec. 309.405  Effect of listing.

    (a) The head of the contracting activity (HCA) (not delegable) may, 
with the written concurrence of the debarring or suspending official, 
make the determinations referenced in FAR 9.405(a), regarding contracts 
for their respective activities.
    (1) If a Contracting Officer considers it necessary to award a 
contract, or consent to a subcontract with a debarred or suspended 
contractor, the Contracting Officer shall prepare a determination, 
including all pertinent documentation, and submit it through acquisition 
channels to the head of the contracting activity. The documentation must 
include the date by which approval is required and a compelling reason 
for the proposed action. Compelling reasons for award of a contract or 
consent to a subcontract with a debarred or suspended contractor 
include:
    (i) The property or services to be acquired are available only from 
the listed contractor; or
    (ii) The urgency of the requirement dictates that the Department 
conduct business with the listed contractor.
    (2) If the HCA decides to approve the requested action, he/she shall 
request the concurrence of the debarring or suspending official and, if 
given, shall inform the contracting officer in writing of the decision 
within the required time period.

[66 FR 4231, Jan. 17, 2001, as amended at 71 FR 76497, Dec. 20, 2006]

[[Page 31]]



Sec. 309.406  Debarment.



Sec. 309.406-3  Procedures.

    (a) Investigation and referral. When an apparent cause for debarment 
becomes known, the initiating official shall prepare a report containing 
the information required by 309.470-2, along with a written 
recommendation, and forward it through appropriate channels to the 
debarring official. Reports shall be forwarded in accordance with 
309.470-1. The debarring official, the Deputy Assistant Secretary for 
Acquisition Management and Policy, shall initiate an investigation.
    (b) Decision making process. The debarring official shall review the 
results of the investigation, if any, and make a written determination 
whether or not debarment procedures are to be commenced. A copy of the 
determination shall be promptly sent through appropriate channels to the 
initiating official and the Contracting Officer. If it is determined 
that debarment procedures shall commence, the debarring official shall 
consult with the Office of General Counsel and then notify the 
contractor in accordance with FAR 9.406-3(c). If the proposed action is 
not based on a conviction or judgment and the contractor's submission in 
response to the notice raises a genuine dispute over facts material to 
the proposed debarment, the debarring official shall arrange for fact-
finding hearings and take the necessary action specified in FAR 9.406-
3(b)(2). The debarring official shall also ensure that written findings 
of facts are prepared, and shall base the debarment decisions on the 
facts as found, after considering information and argument submitted by 
the contractor and any other information in the administrative record. 
The Office of the General Counsel shall represent the Department at any 
fact-finding hearing and may present witnesses for HHS and question any 
witnesses presented by the contractor.

[71 FR 76497, Dec. 20, 2006]



Sec. 309.407  Suspension.



Sec. 309.407-3  Procedures.

    (a) Investigation and referral. When an apparent cause for 
suspension becomes known, the initiating official shall prepare a report 
containing the information required by 309.470-2 along with a written 
recommendation and forward it through appropriate channels to the 
suspending official. Reports shall be forwarded in accordance with 
309.470-1. The suspending official shall initiate an investigation.
    (b) Decision making process. The suspending official shall review 
the results of the investigation, if any, and make a written 
determination whether or not suspension should be imposed. A copy of 
this determination shall be promptly sent through appropriate channels 
to the initiating official and the Contracting Officer. If it is 
determined that suspension shall be imposed, the suspending official 
shall consult with the Office of General Counsel and then notify the 
contractor in accordance with FAR 9.407-3(c). If the action is not based 
on an indictment, and, subject to the provisions of FAR 9.407-3(b)(2), 
the contractor's submission in response to the notice raises a genuine 
dispute over facts material to the suspension, the suspending official 
shall, after suspension has been imposed, arrange for fact-finding 
hearings and take the necessary actions specified in FAR 9.407-3(b)(2).

[71 FR 76497, Dec. 20, 2006]



Sec. 309.470  Reporting of suspected causes for debarment or suspension, 

or the taking of evasive actions.



Sec. 309.470-1  Situations where reports are required.

    A report incorporating the information required by 309.470-2 shall 
be forwarded, in duplicate, by the Contracting Officer through 
acquisition channels to OAMP when:
    (a) A contractor has committed, or is suspected of having committed, 
any of the acts described in FAR 9.406-2 or FAR 9.407-2; or
    (b) A contractor is suspected of attempting to evade the 
prohibitions of debarment or suspension imposed under this subject, or 
any other comparable regulation, by changes of address, multiple 
addresses, formation of new companies, or by other devices.

[66 FR 4231, Jan. 17, 2001, as amended at 71 FR 76498, Dec. 20, 2006]

[[Page 32]]



Sec. 309.470-2  Contents of reports.

    Each report prepared under 309.470-1 shall be coordinated with the 
Office of the General Counsel and shall include the following 
information, where available:
    (a) Name and address of contractor.
    (b) Name of the principal officers, partners, owners, or managers.
    (c) All known affiliates, subsidiaries, or parent firms, and the 
nature of the affiliation.
    (d) Description of the contract or contracts concerned, including 
the contract number, and office identifying numbers or symbols, the 
amount of each contract, the amount paid the contractor and the amount 
still due, and the percentage of work completed and to be completed.
    (e) The status of vouchers.
    (f) Whether contract funds have been assigned pursuant to the 
Assignment of Claims Act, as amended, (31 U.S.C. 3727, 41 U.S.C. 15), 
and, if so assigned, the name and address of the assignee and a copy of 
the assignment.
    (g) Whether any other contracts are outstanding with the contractor 
or any affiliates, and, if so, the amount of the contracts, whether 
these funds have been assigned pursuant to the Assignment of Claims Act, 
as amended, (31 U.S.C. 3727, 41 U.S.C. 15), and the amounts paid or due 
on the contracts.
    (h) A complete summary of all available pertinent evidence.
    (i) A recommendation as to the continuation of current contracts.
    (j) An estimate of damages, if any, sustained by the Government as a 
result of the action of the contractor, including an explanation of the 
method used in making the estimate.
    (k) The comments and recommendations of the contracting officer and 
statements regarding whether the contractor should be suspended or 
debarred, whether any limitations should be applied to the action, and 
the period of any proposed debarment.
    (l) As an enclosure, a copy of the contract(s) or pertinent excerpts 
therefrom, appropriate exhibits, testimony or statements of witnesses, 
copies of assignments, and other relevant documentation or a written 
summary of any information for which documentation is not available.

                    PART 311_DESCRIBING AGENCY NEEDS

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).



Sec. 311.003  Defining Electronic Information Technology (EIT) 

requirements.

    HHS officials who are defining agency needs for EIT products and 
services and performing market research to meet those needs can use the 
Buy Accessible Wizard (http://www.buyaccessible.gov) managed by the 
General Services Administration to document EIT requirements, identify 
the applicable Section 508 standards, and document the market research.

[71 FR 76498, Dec. 20, 2007]

                PART 312_ACQUISITION OF COMMERCIAL ITEMS

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

          Subpart 312.1_Acquisition of Commercial Items_General



Sec. 312.101  Policy.

    (a) It is HHS policy to maximize its buying power, reduce 
acquisition administrative costs, and develop long-term, mutually 
beneficial, open partnerships with best-in-class providers of products 
and services. Accordingly, HHS has implemented a Strategic Sourcing 
Program under which Indefinite-Delivery/Indefinite-Quantity contracts 
(IDIQs) and Blanket Purchase Agreements (BPAs), known as HHS-wide 
Acquisition Contracts (HWACs), are awarded to allow for savings for 
commercial items and services across HHS and make the acquisition 
process more efficient.
    (b) If consideration is being given to soliciting or acquiring a 
product or service from a source, other than HHS Contract Closeout IDIQs 
or Strategic Sourcing BPAs, when the category of the current requirement 
(e.g. Lab Supplies, Events Management) is encompassed in the portfolio 
of existing IDIQ or BPA categories a waiver request must be prepared and 
approved in advance of a purchase or processing of a requirement.

[[Page 33]]

    (c) The instructions, including approval requirements, and waiver 
form, are available at http://dbh.ogam2000.com/HHS--Strategic--Sourcing/
Data--Collection/waiver.asp.
    The following links provide more detailed information regarding the 
supplies, equipment, and services in each of the HWACs: the HHS 
Acquisition Integration and Modernization Web site: http://
intranet.hhs.gov/hwac/index.html and the HHS Strategic Sourcing Web 
site: http://intranet.hhs.gov/ssc/.

[71 FR 76498, Dec. 20, 2007]

[[Page 34]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 313_SIMPLIFIED ACQUISITION PROCEDURES

              Subpart 313.3_Simplified Acquisition Methods

Sec.

Sec. 313.301 Governmentwide commercial purchase card.

Sec. 313.303 Blanket Purchase Agreements (BPAs).

Sec. 313.303-5 Purchases under BPAs.

Sec. 313.305 Imprest funds and third party drafts.

Sec. 313.305-1 General.

Sec. 313.306 SF 44, Purchase Order--Invoice--Voucher.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4233, Jan. 17, 2001, unless otherwise noted.

              Subpart 313.3_Simplified Acquisition Methods.



Sec. 313.301  Governmentwide commercial purchase card.

    (b) The Department has issued general guidance concerning the use of 
governmentwide commercial purchase cards, and has authorized the OPDIVs 
to establish procedures for the use, administrative and management 
controls, and training necessary to comply with FAR 13.301.



Sec. 313.303  Blanket Purchase Agreements (BPAs).



Sec. 313.303-5  Purchases under BPAs.

    (e)(5) Delivery documents, invoices, etc., signed by the Government 
employee receiving the item or service will be forwarded to the fiscal 
office or other paying office as designated by the OPDIV. Payment will 
be made on the basis of the signed document, invoice, etc. Contracting 
offices will ensure that established procedures allowing for 
availability of funds are in effect prior to placement of orders.



Sec. 313.305  Imprest funds and third party drafts.



Sec. 313.305-1  General.

    Requests to establish imprest funds shall be made to the responsible 
fiscal office. At larger activities where the cashier may not be 
conveniently located near the purchasing office, a Class C Cashier may 
be installed in the purchasing office. Documentation of cash purchases 
shall be in accordance with instructions contained in the HHS Voucher 
Audit Manual Part 1, Chapter 1-10.



Sec. 313.306  SF 44, Purchase Order--Invoice--Voucher.

    (d) Since the Standard Form (SF) 44 is an accountable form, a record 
shall be maintained of serial numbers of the form, to whom issued, and 
date issued. SF 44's shall be kept under adequate lock and key to 
prevent unauthorized use. A reservation of funds shall be established to 
cover total anticipated expenditures prior to use of the SF 44.

                         PART 314_SEALED BIDDING

                   Subpart 314.2_Solicitation of Bids

Sec.

Sec. 314.202 General rules for solicitation of bids.

Sec. 314.202-7 Facsimile bids.

           Subpart 314.4_Opening of Bids and Award of Contract


Sec. 314.404 Rejection of bids.

Sec. 314.404-1 Cancellation of invitations after opening.

Sec. 314.407 Mistakes in bids.

Sec. 314.407-3 Other mistakes disclosed before award.

Sec. 314.407-4 Mistakes after award.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4233, Jan. 17, 2001, unless otherwise noted.

[[Page 35]]

                   Subpart 314.2_Solicitation of Bids



Sec. 314.202  General rules for solicitation of bids.



Sec. 314.202-7  Facsimile bids.

    (c) If the HCA (not delegable) has determined that the contracting 
activity will allow use of facsimile bids and proposals, the HCA shall 
prescribe internal procedures, in accordance with the FAR, to ensure 
uniform processing and control.

[71 FR 76498, Dec. 20, 2006]

           Subpart 314.4_Opening of Bids and Award of Contract



Sec. 314.404  Rejection of bids.



Sec. 314.404-1  Cancellation of invitations after opening.

    (c) The HCA or CCO (not delegable) shall make the determinations 
required to be made by the agency head in FAR 14.404-1.

[71 FR 76498, Dec. 20, 2006]



Sec. 314.407  Mistakes in bids.



Sec. 314.407-3  Other mistakes disclosed before award.

    (e) Authority has been delegated to the Departmental Protest Control 
Officer, Office of Acquisition Management and Policy, to make 
administrative determinations in connection with mistakes in bid alleged 
after opening and before award. This authority may not be redelegated.
    (f) Each proposed determination shall have the concurrence of the 
Chief, General Law Division, Office of General Counsel.
    (i) Doubtful cases shall not be submitted by the Contracting Officer 
directly to the Comptroller General, but, instead, shall be submitted to 
the Departmental Protest Control Officer.

[71 FR 76498, Dec. 20, 2006]



Sec. 314.407-4  Mistakes after award.

    (c) Authority has been delegated to the Departmental Protest Control 
Officer to make administrative determinations in connection with 
mistakes in bid alleged after award. This authority may not be 
redelegated.
    (d) Each proposed determination shall have the concurrence of the 
Chief, General Law Division, Office of General Counsel.

[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76498, Dec. 20, 2006]

                   PART 315_CONTRACTING BY NEGOTIATION

   Subpart 315.2_Solicitation and Receipt of Proposals and Information

Sec.

Sec. 315.204 Contract format.

Sec. 315.204-1 Uniform contract format.

Sec. 315.208 Submission, modification, revision, and withdrawal of 
          proposals.

Sec. 315.209 Solicitation provisions and contract clauses.

                     Subpart 315.3_Source Selection


Sec. 315.305 Proposal evaluation.

Sec. 315.306 Exchanges with offerors after receipt of proposals.

Sec. 315.307 Proposal revisions.

Sec. 315.370 Finalization of details with the selected source.

Sec. 315.371 Contract preparation and award.

Sec. 315.372 Preparation of negotiation memorandum.

                     Subpart 315.4_Contract Pricing


Sec. 315.404 Proposal analysis.

Sec. 315.404-2 Information to support proposal analysis.

Sec. 315.404-4 Profit.

                   Subpart 315.6_Unsolicited Proposals


Sec. 315.605 Content of unsolicited proposals.

Sec. 315.606 Agency procedures.

Sec. 315.606-1 Receipt and initial review.

Sec. 315.609 Limited use of data.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4233, Jan. 17, 2001, unless otherwise noted.

   Subpart 315.2_Solicitation and Receipt of Proposals and Information



Sec. 315.204  Contract format.



Sec. 315.204-1  Uniform contract format.

    (a) When preparing solicitations and resulting contracts, 
Contracting Officers/Contract Specialists are strongly encouraged to use 
as a guide the HHS

[[Page 36]]

Solicitation/Contract Structure Document found at http://
www.knownet.hhs.gov/acquisition/policy.htm.

[71 FR 76498, Dec. 20, 2006]



Sec. 315.208  Submission, modification, revision, and withdrawal of 

proposals.

    (b) When the head of the contracting activity (HCA) for a health 
agency determines that certain classes of biomedical or behavioral 
research and development acquisitions should be subject to conditions 
other than those specified in FAR 52.215-1(c)(3), the HCA may authorize 
the use of the provision at 352.215-70 in addition to the provision at 
FAR 52.215-1. This is an authorized deviation.
    (2) When the provision at 352.215-70 is included in the solicitation 
and a proposal is received after the exact time specified for receipt, 
the contracting officer, with the assistance of cost and technical 
personnel, shall make a written determination as to whether the proposal 
meets the requirements of the provision at 352.215-70 and, therefore, 
can be considered.



Sec. 315.209  Solicitation provisions and contract clauses.

    (a) Paragraph (e) of the provision at 352.215-1 shall be used in 
place of that specified at FAR 52.215-1(e). This is an authorized 
deviation.

[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76498, Dec. 20, 2006]

                     Subpart 315.3_Source Selection



Sec. 315.305  Proposal evaluation.

    (a)(1) Cost or price evaluation. (i) The Contracting Officer shall 
evaluate business proposals in accordance with the requirements set 
forth in FAR 15.404. The extent of cost or price analysis in each case 
depends on the contract type, the amount of the proposal, the technical 
complexity, and related cost or price. The Project Officer shall be 
requested to analyze the following elements, if applicable, to determine 
if they are necessary and reasonable for efficient contract performance:
    (A) The number of labor hours proposed for the various labor 
categories and the mix in relation to the technical requirements;
    (B) Types, numbers and hours/days of proposed consultants;
    (C) The kinds and quantities of material, equipment, supplies, and 
services;
    (D) Kinds and quantities of information technology;
    (E) Logic of proposed subcontracting; and
    (F) Travel proposed, including number of trips, locations, purpose, 
and travelers.
    (ii) The Project Officer shall provide written comments, including 
the rationale for any exceptions to the elements. The Project Officer's 
comments shall be used for negotiations or to support award without 
discussions. The Contracting Officer should also request assistance of a 
cost/price analyst, when necessary. The Contracting Officer's 
negotiation memorandum must include the rationale used in determining 
that the price or cost is fair and reasonable.
    (2) Past performance evaluation. When evaluating past performance, 
the contracting officer is responsible for conducting reference checks 
to obtain information concerning the performance history of offerors. 
The contracting officer may require the assistance of the project 
officer as well as other Government technical personnel in performing 
this function.
    (3) Technical evaluation. (i) Technical evaluation plan. (A) A 
technical evaluation plan may be required by the contracting officer, at 
his/her discretion, when an acquisition is sufficiently complex as to 
warrant a formal plan.
    (B) The technical evaluation plan should include at least the 
following:
    (1) A list of recommended technical evaluation panel members, their 
organizations, a list of their major consulting clients (if applicable), 
their qualifications, and curricula vitae (if applicable);
    (2) A justification for using non-Government technical evaluation 
panel members. (Justification is not required if non-Government 
evaluators will be used in accordance with standard contracting activity 
procedures or policies);

[[Page 37]]

    (3) A statement that there is no apparent or actual conflict of 
interest regarding any recommended panel member;
    (4) A copy of each rating sheet, approved by the contracting 
officer, to be used to assure consistency with the evaluation criteria; 
and
    (5) A brief description of the general evaluation approach.
    (C) The technical evaluation plan must be signed by an official 
within the program office in a position at least one level above the 
project officer, or in accordance with contracting activity procedures.
    (D) The technical evaluation plan shall be submitted to the 
Contracting Officer for review and approval before the solicitation is 
issued. The Contracting Officer shall make sure that the significant 
factors and subfactors relating to the evaluation are reflected in the 
evaluation criteria when conducting the review of the plan.
    (ii) Technical evaluation panel.
    (A) General. (1) A technical evaluation panel is required for all 
acquisitions subject to this subpart which are expected to exceed 
$500,000 and in which technical evaluation is considered a key element 
in the award decision. The contracting officer has the discretion to 
require a technical evaluation panel for acquisitions not exceeding 
$500,000 based on the complexity of the acquisition.
    (2) The technical evaluation process requires careful consideration 
regarding the size, composition, expertise, and function of the 
technical evaluation panel. The efforts of the panel can result in the 
success or failure of the acquisition.
    (B) Role of the Project Officer. (1) The Project Officer is the 
Contracting Officer's technical representative for the acquisition 
action. The Project Officer may be a voting member of the technical 
evaluation panel, and may also serve as the chairperson of the panel, 
unless prohibited by law or contracting activity procedures.
    (2) The Project Officer is responsible for recommending panel 
members who are knowledgeable in the technical aspects of the 
acquisition and capable of identifying strengths and weaknesses in the 
proposals received. Government employees serving as panel members must 
be selected in accordance with the requirements set forth in 307.170.
    (3) The Project Officer shall ensure that persons possessing 
expertise and experience in addressing issues relative to sex, race, 
national origin, and handicapped discrimination are included as panel 
members for acquisitions in which such issues are applicable.
    (4) The Project Officer shall submit the list of recommended panel 
members to an official within the project office in a position at least 
one level higher. This official will review the list and select the 
chairperson.
    (5) The Project Officer shall arrange for adequate and secure 
working space for the panel.
    (C) Role of the contracting officer. (1) The term ``contracting 
officer,'' as used in this subpart, may be the contracting officer or 
his/her designated representative within the contracting office.
    (2) The contracting officer shall not serve as a member of the 
technical evaluation panel but should be available to:
    (i) Address the initial meeting of the technical evaluation panel;
    (ii) Provide assistance to the evaluators as required; and
    (iii) Ensure that the scores adequately reflect the written 
technical report comments.
    (D) Conflict of interest. (1) If a panel member has an actual or 
apparent conflict of interest related to a proposal under evaluation, 
he/she shall be removed from the panel and replaced with another 
evaluator. If a suitable replacement is not available, the panel shall 
perform the review without a replacement.
    (2) For the purposes of this subpart, conflicts of interest are 
defined in the Standards of Ethical Conduct for Employees of the 
Executive Branch (5 CFR part 2635), Supplemental Standards of Ethical 
Conduct for Employees of the Department of Health and Human Services (5 
CFR part 5501), and the Procurement Integrity Act. For outside 
evaluators serving on the technical evaluation panel, see paragraph 
(a)(3)(ii)(F) of this section.
    (E) Continuity of evaluation process. (1) The technical evaluation 
panel shall evaluate all original proposals, make

[[Page 38]]

recommendations to the chairperson regarding strengths and weaknesses of 
proposals, and, if required by the Contracting Officer, assist the 
Contracting Officer during communications and discussions, and review 
supplemental, revised and/or final proposal revisions. To the extent 
possible, the same evaluators should be available throughout the entire 
evaluation and selection process to ensure continuity and consistency in 
the treatment of proposals. The following are examples of circumstances 
when it would not be necessary for the technical evaluation panel to 
evaluate revised proposals submitted during the acquisition:
    (i) The answers to questions do not have a substantial impact on the 
proposal;
    (ii) Final proposal revisions are not materially different from the 
original proposals; or
    (iii) The rankings of the offerors are not affected because the 
revisions to the proposals are relatively minor.
    (2) The chairperson, with the concurrence of the contracting 
officer, may decide not to have the panel evaluate the revised 
proposals. Whenever this decision is made, it must be fully documented 
by the chairperson and approved by the contracting officer.
    (3) When technical evaluation panel meetings are considered 
necessary by the contracting officer, the attendance of evaluators is 
mandatory. When the chairperson determines that an evaluator's failure 
to attend the meetings is prejudicial to the evaluation, the chairperson 
shall remove and/or replace the individual after discussing the 
situation with the contracting officer and obtaining his/her concurrence 
and the approval of the official responsible for appointing the panel 
members.
    (4) When continuity of the evaluation process is not possible, and 
either new evaluators are selected or the size of the evaluation panel 
is reduced, all proposals shall be reviewed by each panel member at the 
current stage of the acquisition (i.e., initial proposal, final proposal 
revisions, etc.). Also, guidance should be provided concerning what to 
do if an unusually large number of proposals are received, including how 
to determine what constitutes an unusually large number of proposals.
    (F) Use of outside evaluators. (1) The National Institutes of Health 
(NIH) and the Substance Abuse and Mental Health Services Administration 
(SAMHSA) are required to have a peer review of research and development 
contracts in accordance with Public Law 93-352 as amended by Public Law 
94-63; 42 U.S.C. 289 a and 42 U.S.C. 290aa-3 respectively. This 
legislation requires peer review of projects and proposals, and not more 
than one-fourth of the members of a peer review group may be officers or 
employees of the United States. NIH and SAMHSA are therefore exempt from 
the provisions of 315.305(a)(3)(ii) to the extent that 42 U.S.C. 289a 
and 290aa-3 apply. Conflicts of interest are addressed at 42 CFR part 
52h. Other agencies subject to statutory scientific peer review 
requirements are also exempt from the requirements of paragraph 
(a)(3)(ii) of this section to the extent that these requirements are 
inconsistent with their legislative requirements.
    (2) Decisions to disclose proposals to evaluators outside of the 
Government shall be made by the official responsible for appointing 
panel members in accordance with operating division procedures. The 
avoidance of organization conflict of interest and competitive 
relationships must be taken into consideration when making the decision 
to use outside evaluators.
    (3) When it is determined to disclose a solicited proposal outside 
the Government for evaluation purposes, the following or similar 
conditions shall be included in the written agreement with evaluator(s) 
prior to disclosure:

                   Conditions for Evaluating Proposals

    The evaluator agrees to use the data (trade secrets, business data, 
and technical data) contained in the proposal for evaluation purposes 
only.
    The foregoing requirement does not apply to data obtained from 
another source without restriction.
    Any notice or legend placed on the proposal by either the Department 
or the submitter of the proposal shall be applied to any reproduction or 
abstract provided to the evaluator or made by the evaluator. Upon 
completion of the evaluation, the evaluator shall return to the 
Government the furnished copy of the proposal or abstract, and

[[Page 39]]

all copies thereof, to the Departmental office which initially furnished 
the proposal for evaluation.
    Unless authorized by the Department's initiating office, the 
evaluator shall not contact the submitter of the proposal concerning any 
aspects of its contents.
    The evaluator's employees and subcontractors shall abide by these 
conditions.

    (iii) Receipt of proposals.
    (A) After the closing date set by the solicitation for the receipt 
of proposals, the contracting officer will use a transmittal memorandum 
to forward the technical proposals to the project officer or chairperson 
for evaluation. The business proposals will be retained by the 
contracting officer for evaluation.
    (B) The transmittal memorandum shall include at least the following:
    (1) A list of the names of the organizations submitting proposals;
    (2) A reference to the need to preserve the integrity of the source 
selection process;
    (3) A statement that only the contracting officer is to conduct 
discussions.
    (4) A requirement for a technical evaluation report in accordance 
with paragraph (a)(3)(vi) of this section; and
    (5) The establishment of a date for receipt of the technical 
evaluation report.
    (iv) Convening the technical evaluation panel.
    (A) Normally, the technical evaluation panel will convene to 
evaluate the proposals. However, there may be situations when the 
contracting officer determines that it is not feasible for the panel to 
convene. Whenever this decision is made, care must be taken to assure 
that the technical review is closely monitored to produce acceptable 
results.
    (B) When a panel is convened, the chairperson is responsible for the 
control of the technical proposals provided to him/her by the 
contracting officer for use during the evaluation process. The 
chairperson will generally distribute the technical proposals prior to 
the initial panel meeting and will establish procedures for securing the 
proposals whenever they are not being evaluated to insure their 
confidentiality. After the evaluation is complete, all proposals must be 
returned to the contracting officer by the chairperson.
    (C) The contracting officer shall address the initial meeting of the 
panel and state the basic rules for conducting the evaluation. The 
contracting officer shall provide written guidance to the panel if he/
she is unable to attend the initial panel meeting. The guidance should 
include:
    (1) Explanation of conflicts of interest;
    (2) The necessity to read and understand the solicitation, 
especially the statement of work and evaluation criteria, prior to 
reading the proposals;
    (3) The need for evaluators to restrict the review to only the 
solicitation and the contents of the technical proposals;
    (4) The need for each evaluator to review all the proposals;
    (5) The need to watch for ambiguities, inconsistencies, errors, and 
deficiencies which should be surfaced during the evaluation process;
    (6) An explanation of the evaluation process and what will be 
expected of the evaluators throughout the process;
    (7) The need for the evaluators to be aware of the requirement to 
have complete written documentation of the individual strengths and 
weaknesses which affect the scoring of the proposals; and
    (8) An instruction directing the evaluators that, until the award is 
made, information concerning the acquisition must not be disclosed to 
any person not directly involved in the evaluation process.
    (v) Rating and ranking of proposals. The evaluators will 
individually read each proposal, describe tentative strengths and 
weaknesses, and independently develop preliminary scores in relation to 
each evaluation factor set forth in the solicitation. After this has 
been accomplished, the evaluators shall discuss in detail the individual 
strengths and weakness described by each evaluator and, if possible, 
arrive at a common understanding of the major strengths and weaknesses 
and the potential for correcting each offeror's weakness(es). Each 
evaluator will score each proposal, and then the technical evaluation 
panel will collectively rank the proposals. Generally, ranking will be 
determined by adding

[[Page 40]]

the numerical scores assigned to the evaluation factors and finding the 
average for each offeror. The evaluators should then identify whether 
each proposal is acceptable or unacceptable. Predetermined cutoff scores 
shall not be employed.
    (vi) Technical evaluation report. A technical evaluation report 
shall be prepared and furnished to the contracting officer by the 
chairperson and maintained as a permanent record in the contract file. 
The report must reflect the ranking of the proposals and identify each 
proposal as acceptable or unacceptable. The report must also include a 
narrative evaluation specifying the strengths and weaknesses of each 
proposal, a copy of each signed rating sheet, and any reservations, 
qualifications, or areas to be addressed that might bear upon the 
selection of sources for negotiation and award. Concrete technical 
reasons supporting a determination of unacceptability with regard to any 
proposal must be included. The report should also include specific 
points and questions which are to be raised in discussions or 
negotiations.

[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76498, Dec. 20, 2006]



Sec. 315.306  Exchanges with offerors after receipt of proposals.

    (d) Exchanges with offerors after establishment of the competitive 
range. The contracting officer and project officer should discuss the 
uncertainties and/or deficiencies that are included in the technical 
evaluation report for each proposal in the competitive range. Technical 
questions should be developed by the project officer and/or the 
technical evaluation panel and should be included in the technical 
evaluation report. The management, past performance and cost or price 
questions should be prepared by the contracting officer with assistance 
from the project officer and/or panel as required. The method of 
requesting offerors in the competitive range to submit the additional 
information will vary depending on the complexity of the questions, the 
extent of additional information requested, the time needed to analyze 
the responses, and the time frame for making the award. However, to the 
extent practicable, all questions and answers should be in writing. Each 
offeror in the competitive range shall be given an equitable period of 
time for preparation of responses to questions to the extent 
practicable. The questions should be developed so as to disclose the 
ambiguities, uncertainties, and deficiencies of the offeror.



Sec. 315.307  Proposal revisions.

    (b) Final proposal revisions are subject to a final evaluation of 
price or cost and other salient factors by the contracting officer and 
project officer with assistance from a cost/price analyst, and an 
evaluation of technical factors by the technical evaluation panel, as 
necessary. Proposals may be technically rescored and reranked by the 
technical evaluation panel and a technical evaluation report prepared. 
To the extent practicable, the evaluation shall be performed by the same 
evaluators who reviewed the original proposals. A final evaluation of 
past performance will be made by the contracting officer and project 
officer. The technical evaluation panel may be involved in the final 
evaluation of past performance if the panel is comprised solely of 
Government personnel.



Sec. 315.370  Finalization of details with the selected source.

    (a) After selection of the successful proposal, finalization of 
details with the selected offeror may be conducted if deemed necessary. 
However, no factor which could have any effect on the selection process 
may be introduced after the common cutoff date for receipt of final 
proposal revisions. The finalization process shall not in any way 
prejudice the competitive interest or rights of the unsuccessful 
offerors. Finalization of details with the selected offeror shall be 
restricted to definitizing the final agreement on terms and conditions, 
assuming none of these factors were involved in the selection process.
    (b) Caution must be exercised by the contracting officer to insure 
that the finalization process is not used to change the requirements 
contained in the solicitation, nor to make any other changes which would 
impact on the source selection decision. Whenever a

[[Page 41]]

material change occurs in the requirements, the competition must be 
reopened and all offerors submitting final proposal revisions must be 
given an opportunity to resubmit proposals based on the revised 
requirements. Whenever there is a question as to whether a change is 
material, the contracting officer should obtain the advice of technical 
personnel and legal counsel before reopening the competition. 
Significant changes in the offeror's cost proposal may also necessitate 
a reopening of competition if the changes alter the factors involved in 
the original selection process.
    (c) Should finalization details beyond those specified in paragraph 
(a) of this section be required for any reason, discussions must be 
reopened with all offerors submitting final proposal revisions.
    (d) Upon finalization of details, the contracting officer should 
obtain a confirmation letter from the successful offeror which includes 
any revisions to the technical proposal, the agreed to price or cost, 
and, as applicable, a certificate of current cost or pricing data.



Sec. 315.371  Contract preparation and award.

    (a) After details have been finalized with the selected offeror, the 
Contracting Officer shall:
    (1) Prepare the negotiation memorandum in accordance with 315.372;
    (2) Prepare the contract containing all agreed to terms and 
conditions and clauses required by law or regulation;
    (3) Include in the contract file the pertinent documents referenced 
in FAR 4.803; and
    (4) Obtain the appropriate approval of the proposed contract 
award(s) in accordance with subpart 304.71 and contracting activity 
procedures.
    (b) After receiving the required approvals, the contract should be 
transmitted to the prospective contractor for signature. The prospective 
contractor must be informed that the contract is not effective until 
accepted by the contracting officer.
    (c) The contract shall not be issued until the finance office 
certifies that the funds are available for obligation.

[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76499, Dec. 20, 2006]



Sec. 315.372  Preparation of negotiation memorandum.

    The negotiation memorandum or summary of negotiations is a complete 
record of all actions leading to award of a contract and is prepared by 
the Contracting Officer/Contract Specialist to support the source 
selection decision discussed in FAR 15.308. It should be in sufficient 
detail to explain and support the rationale, judgments, and authorities 
upon which all actions were predicated. The memorandum will document the 
negotiation process and reflect the negotiator's actions, skills, and 
judgments in concluding a satisfactory agreement for the Government. The 
negotiation memorandum shall address each item listed below. If an item 
is not applicable, it shall be so stated in the memorandum. Information 
already contained in the contract file may be referenced rather than 
reiterated.
    (a) Description of articles and services and period of performance. 
A description of articles and services, quantity, unit price, total 
contract amount, and period of contract performance should be set forth.
    (b) Acquisition planning. Summarize or reference any acquisition 
planning activities that have taken place.
    (c) Synopsis of acquisition. A statement as to whether the 
acquisition has or has not been publicized in accordance with FAR 
Subpart 5.2. A brief statement of explanation should be included with 
reference to the specific basis for exemption under the FAR, if 
applicable.
    (d) Contract type. Provide sufficient detail to support the type of 
contractual instrument recommended for the acquisition. If the contract 
is a cost-sharing type, explain the essential cost-sharing features.
    (e) Extent of competition. The extent to which full and open 
competition was solicited and obtained must be discussed. The discussion 
shall include the date of solicitation, sources solicited, and 
solicitation results. If a late proposal was received, discuss whether 
or not the late proposal was evaluated and the rationale for the 
decision.
    (f) Technical evaluation. Summarize or reference the results 
presented in the technical evaluation report.

[[Page 42]]

    (g) Business evaluation. Summarize or reference results presented in 
the business report.
    (h) Past performance. Summarize or reference results of past 
performance evaluation and reference checks.
    (i) Competitive range (if applicable). Describe how the competitive 
range was determined and state the offerors who were included in the 
competitive range and the ones who were not.
    (j) Cost breakdown and analysis. Include a complete cost breakdown 
together with the negotiator's analysis of the estimated cost by 
individual cost elements. The negotiator's analysis should contain 
information such as:
    (1) A comparison of cost factors proposed in the instant case with 
actual factors used in earlier contracts, using the same cost centers of 
the same supplier or cost centers of other sources having recent 
contracts for the same or similar item.
    (2) Any pertinent Government-conducted audit of the proposed 
contractor's record of any pertinent cost advisory report.
    (3) Any pertinent technical evaluation inputs as to necessity, 
allocability and reasonableness of labor, material and other direct 
expenses.
    (4) Any other pertinent information to fully support the basis for 
and rationale of the cost analysis.
    (5) If the contract is an incentive type, discuss all elements of 
profit and fee structure.
    (6) A justification of the reasonableness of the proposed 
contractor's estimated profit or fixed fee, considering the requirements 
of FAR 15.404-4 and HHSAR 315.404-4.
    (k) Cost realism. Describe the cost realism analysis performed on 
proposals.
    (l) Government-furnished property and Government-provided 
facilities. With respect to Government-furnished or Government-provided 
facilities, equipment, tooling, or other property, include the 
following:
    (1) Where no property is to be provided, a statement to that effect.
    (2) Where property is to be provided, a full description, the 
estimated dollar value, the basis of price comparison with competitors, 
and the basis of rental charge, if rental is involved.
    (3) Where the furnishing of any property or the extent has not been 
determined and is left open for future resolution, a detailed 
explanation.
    (m) Negotiations. Include a statement as to the date and place 
negotiations were conducted, and identify members of both the Government 
and contractor negotiating teams by area of responsibility. Include 
negotiation details relative to the statement of work, terms and 
conditions, and special provisions. The results of cost or price 
negotiations must include the information required by FAR 31.109 and 
15.406-3. In addition, if cost or pricing data was required to be 
submitted, the negotiation record must also contain the extent to which 
the contracting officer relied upon the factual cost or pricing data 
submitted and used in negotiating the cost or price.
    (n) Other considerations. Include coverage of areas such as:
    (1) Financial data with respect to a contractor's capacity and 
stability.
    (2) Determination of contractor responsibility.
    (3) Details as to why the method of payment, such as progress 
payment, advance payment, etc., is necessary. Also cite any required D & 
F's.
    (4) Information with respect to obtaining of a certificate of 
current cost or pricing data.
    (5) Other required special approvals.
    (6) If the contract represents an extension of previous work, the 
status of funds and performance under the prior contract(s) should be 
reflected. Also, a determination should be made that the Government has 
obtained enough actual or potential value from the work previously 
performed to warrant continuation with the same contractor. (Project 
officer should furnish the necessary information.)
    (7) If the contract was awarded by full and open competition, state 
where the unsuccessful offerors' proposals are filed.
    (8) State that equal opportunity provisions of the proposed contract 
have been explained to the contractor, and it is aware of its 
responsibilities. Also state whether or not a clearance is required.
    (9) If the contract is for services, a statement must be made, in 
accordance

[[Page 43]]

with FAR 37.103, that the services to be acquired are nonpersonal in 
nature.
    (o) Terms and conditions. Identify the general and special clauses 
and conditions that are contained in the contract, such as option 
arrangements, incremental funding, anticipatory costs, deviations from 
standard clauses, etc. The basis and rationale for inclusion of any 
special terms and conditions must be stated and, where applicable, the 
document which granted approval for its use identified.
    (p) Recommendation. A brief statement setting forth the 
recommendations for award.
    (q) Signature. The memorandum must be signed by the contract 
negotiator who prepared the memorandum.

[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76499, Dec. 20, 2006]

                     Subpart 315.4_Contract Pricing



Sec. 315.404  Proposal analysis.



Sec. 315.404-2  Information to support proposal analysis.

    (a)(2) When some or all information sufficient to determine the 
reasonableness of the proposed cost or price is already available or can 
be obtained by phone from the cognizant audit agency, contracting 
officers may request less-than-complete field pricing support 
(specifying in the request the information needed) or may waive in 
writing the requirement for audit and field pricing support by 
documenting the file to indicate what information is to be used instead 
of the audit report and the field pricing report.
    (3) When initiating audit and field pricing support, the contracting 
officer shall do so by sending a request to the cognizant administrative 
contracting officer (ACO), with an information copy to the cognizant 
audit office. When field pricing support is not available, the 
contracting officer shall initiate an audit by sending, in accordance 
with agency procedures, two (2) copies of the request to the OIG Office 
of Audits' Regional Audit Director. In both cases, the contracting 
officer shall, in the request:
    (i) Prescribe the extent of the support needed;
    (ii) State the specific areas for which input is required;
    (iii) Include the information necessary to perform the review (such 
as the offeror's proposal and the applicable portions of the 
solicitation, particularly those describing requirements and delivery 
schedules);
    (iv) Provide the complete address of the location of the offeror's 
financial records that support the proposal;
    (v) Identify the office having audit responsibility if other than 
the HHS Regional Audit Office; and
    (vi) Specify a due date for receipt of a verbal report to be 
followed by a written audit report. (If the time available is not 
adequate to permit satisfactory coverage of the proposal, the auditor 
shall so advise the contracting officer and indicate the additional time 
needed.) One copy of the audit request letter that was submitted to the 
Regional Audit Director and a complete copy of the contract price 
proposal shall be submitted to OIG/OA/DAC. Whenever, an audit review has 
been conducted by the Office of Audits, two (2) copies of the memorandum 
of negotiation shall be forwarded to OIG/OA/DAC by the contracting 
officer.



Sec. 315.404-4  Profit.

    (b) Policy. (1) The structured approach for determining profit or 
fee (hereafter called profit) provides a technique for establishing a 
profit objective for negotiation. A profit objective is that part of the 
estimated contract price objective or value which, in the judgment of 
the Contracting Officer, constitutes an appropriate amount of profit for 
the acquisition being considered. This technique allows for 
consideration of the profit factors described in paragraph (d) of this 
section. The Contracting Officer's analysis of these factors is based on 
available information such as proposals, audit data, assessment reports, 
preaward surveys, etc. The structured approach provides a basis for 
documenting the profit objective. Any significant departure from this 
objective shall be explained. The amount of documentation depends on the 
dollar value and complexity of the proposed acquisition. The profit 
objective is a part of the overall negotiation objective and is directly 
related to

[[Page 44]]

the cost objective and any proposed sharing arrangement. The profit 
objective should be negotiated at the same time as the other cost items. 
The profit objective should be negotiated as a whole and not as 
individual profit factors.
    (ii) The profit analysis factors in FAR 15.404-4(d) shall be used in 
lieu of the structured approach in the following circumstances. Factors 
considered inapplicable to the acquisition shall be excluded from the 
profit objective. Documentation shall be provided which includes the 
profit factor breakdown.
    (A) Contracts not expected to exceed $100,000;
    (B) Architect-engineer contracts;
    (C) Management contracts for operations and/or maintenance of 
Government facilities;
    (D) Construction contracts;
    (E) Contracts primarily requiring delivery of material supplies by 
subcontractors;
    (F) Termination settlements; and
    (G) Cost-plus-award-fee contracts (However, contracting officers may 
find it advantageous to perform a structured profit analysis as an aid 
in arriving at an appropriate fee arrangement). Other exceptions may be 
made in the negotiation of contracts having unusual pricing situations, 
but shall be justified in writing by the contracting officer in 
situations where the structured approach is determined to be unsuitable.
    (c) Contracting Officer responsibilities. The Contracting Officer 
shall develop the profit objective. This objective shall realistically 
reflect the total overall task to be performed and the requirements 
placed on the contractor. The Contracting Officer shall not begin to 
develop the profit objective until a thorough review of proposed 
contract work has been made; a review of all available knowledge 
regarding the contractor pursuant to FAR subpart 9.1, including audit 
data, preaward survey reports and financial statements, as appropriate, 
has been conducted; and an analysis of the contractor's cost estimate 
and comparison with the Government's estimate or projection of cost has 
been made.
    (d) Profit--analysis factors--(1) Common factors. The following 
factors shall be considered in all cases in which profit is to be 
negotiated. The weight ranges listed after each factor shall be used in 
all instances where the structured approach is used.

------------------------------------------------------------------------
             Profit factors                 Weight ranges (in percent)
------------------------------------------------------------------------
Contractor effort:
  Material acquisition.................  1 to 5.
  Direct labor.........................  4 to 15.
  Overhead.............................  4 to 9.
  General management (G&A).............  4 to 8.
  Other costs..........................  1 to 5.
Other factors:
  Cost risk............................  0 to 7.
  Investment...........................  -2 to +2.
  Performance..........................  -1 to +1.
  Socioeconomic programs...............  -.5 to +.5.
  Special situations...................
------------------------------------------------------------------------

    (i) The Contracting Officer shall measure ``Contractor Effort'' by 
assigning a profit percentage within the designated weight range to each 
element of contract cost. The categories listed are for reference 
purposes only, but are broad and basic enough to provide guidance to 
other elements of cost. Facilities capital cost of money is not to be 
included. A total dollar profit shall be computed for ``Contractor 
Effort.''
    (ii) The Contracting Officer shall use the total dollar profit for 
the ``Contractor Effort'' to calculate specific profit dollars for 
``Other Factors''--cost risk, investment, performance, socioeconomic 
programs, and special situations. The Contracting Officer shall multiply 
the total dollar profit for the ``Contractor Effort'' by the weight 
assigned to each of the elements in the ``Other Factors'' category. 
Facilities capital cost of money is not included. Form HHS-674, 
Structured Approach Profit/Fee Objective, should be used. Form HHS-674 
is illustrated in 353.370-674.
    (iii) In making a judgment of the value of each factor, the 
contracting officer should be governed by the definition, description, 
and purpose of the factors together with considerations for evaluating 
them.
    (iv) The structured approach was designed for arriving at profit 
objectives for other than nonprofit organizations. However, the 
structured approach can be used for nonprofit organizations if

[[Page 45]]

appropriate adjustments are made. The Contracting Officer shall use the 
modified structured approach in paragraph (d)(1)(iv)(B) of this section 
to establish profit objectives for nonprofit organizations.
    (A) For purposes of this section, nonprofit organizations are 
defined as those business entities organized and operated exclusively 
for charitable, scientific, or educational purposes, no part of the net 
earnings of which inure to the benefit of any private shareholder or 
individual, and which are exempt from Federal income taxation under 
Section 501 of the Internal Revenue Code.
    (B) For contracts with nonprofit organizations where profit is 
involved, an adjustment of up to 3 percentage points will be subtracted 
from the total profit objective percentage. In developing this 
adjustment, it will be necessary to consider the following factors;
    (1) Tax position benefits;
    (2) Granting of financing through advance payments; and
    (3) Other pertinent factors which may work to either the advantage 
or disadvantage of the contractor in its position as a nonprofit 
organization.
    (2) Contractor effort. Contractor effort is a measure of how much 
the contractor is expected to contribute to the overall effort necessary 
to meet the contract performance requirement in an efficient manner. 
This factor, which is apart from the contractor's responsibility for 
contract performance, takes into account what resources are necessary 
and what the contractor must do to accomplish a conversion of ideas and 
material into the final service or product called for in the contract. 
This is a recognition that within a given performance output, or within 
a given sales dollar figure, necessary efforts on the part of individual 
contractors can vary widely in both value and quantity, and that the 
profit objective should reflect the extent and nature of the 
contractor's contribution to total performance. A major consideration, 
particularly in connection with experimental, developmental, or research 
work, is the difficulty or complexity of the work to be performed, and 
the unusual demands of the contract, such as whether the project 
involves a new approach unrelated to existing technology and/or 
equipment or only refinements to these items. The evaluation of this 
factor requires an analysis of the cost content of the proposed contract 
as follows:
    (i) Material acquisition. (Subcontracted items, purchased parts, and 
other material.) Analysis of these cost items shall include an 
evaluation of the managerial and technical effort necessary to obtain 
the required subcontracted items, purchased parts, material or services. 
The contracting officer shall determine whether the contractor will 
obtain the items or services by routine order from readily available 
sources or by detailed subcontracts for which the prime contractor will 
be required to develop complex specifications. Consideration shall also 
be given to the managerial and technical efforts necessary for the prime 
contractor to select subcontractors and to perform subcontract 
administration functions. In application of this criterion, it should be 
recognized that the contribution of the prime contractor to its 
purchasing program may be substantial. Normally, the lowest unadjusted 
weight for direct material is 2 percent. A weighting of less than 2 
percent would be appropriate only in unusual circumstances when there is 
a minimal contribution by the contractor.
    (ii) Direct labor. (Professional, service, manufacturing and other 
labor). Analysis of the various labor categories of the cost content of 
the contract should include evaluation of the comparative quality and 
quantity of professional and semiprofessional talents, manufacturing and 
service skills, and experience to be employed. In evaluating 
professional and semiprofessional labor for the purpose of assigning 
profit dollars, consideration should be given to the amount of notable 
scientific talent or unusual or scarce talent needed in contrast to 
nonprofessional effort. The assessment should consider the contribution 
this talent will provide toward the achievement of contract objectives. 
Since nonprofessional labor is relatively plentiful and rather easily 
obtained by the contractor and is less critical to the

[[Page 46]]

successful performance of contract objectives, it cannot be weighted 
nearly as high as professional or semiprofessional labor. Service 
contract labor should be evaluated in a like manner by assigning higher 
weights to engineering or professional type skills required for contract 
performance. Similarly, the variety of manufacturing and other 
categories of labor skills required and the contractor's manpower 
resources for meeting these requirements should be considered. For 
purposes of evaluation, categories of labor (i.e., quality control, 
receiving and inspection, etc.) which do not fall within the definition 
for professional, service or manufacturing labor may be categorized as 
appropriate. However, the same evaluation considerations as outlined in 
this paragraph will be applied.
    (iii) Overhead and general management (G&A). (A) Analysis of these 
overhead items of cost should include the evaluation of the makeup of 
these expenses and how much they contribute to contract performance. To 
the extent practicable, analysis should include a determination of the 
amount of labor within these overhead pools and how this labor should be 
treated if it were considered as direct labor under the contract. The 
allocable labor elements should be given the same profit considerations 
that they would receive if they were treated as direct labor. The other 
elements of these overhead pools should be evaluated to determine 
whether they are routine expenses, such as utilities and maintenance, 
and hence given lesser profit consideration, or whether they are 
significant contributing elements. The composite of the individual 
determinations in relation to the elements of the overhead pools will be 
the profit consideration given the pools as a whole. The procedure for 
assigning relative values to these overhead expenses differs from the 
method used in assigning values of the direct labor. The upper and lower 
limits assignable to the direct labor are absolute. In the case of 
overhead expenses, individual expenses may be assigned values outside 
the range as long as the composite ratio is within the range.
    (B) It is not necessary that the contractor's accounting system 
break down overhead expenses within the classifications of research 
overhead, other overhead pools, and general administrative expenses, 
unless dictated otherwise by Cost Accounting Standards (CAS). The 
contractor whose accounting system reflects only one overhead rate on 
all direct labor need not change its system (if CAS exempt) to 
correspond with these classifications. The contracting officer, in an 
evaluation of such a contractor's overhead rate, could break out the 
applicable sections of the composite rate which could be classified as 
research overhead, other overhead pools, and general and administrative 
expenses, and follow the appropriate evaluation technique.
    (C) Management problems surface in various degrees and the 
management expertise exercised to solve them should be considered as an 
element of profit. For example, a contract for a new program for 
research or an item which is on the cutting edge of the state of the art 
will cause more problems and require more managerial time and abilities 
of a higher order than a follow-on contract. If new contracts create 
more problems and require a higher profit weight, follow-ons should be 
adjusted downward because many of the problems should have been solved. 
In any event, an evaluation should be made of the underlying managerial 
effort involved on a case-by-case basis.
    (D) It may not be necessary for the contracting officer to make a 
separate profit evaluation of overhead expenses in connection with each 
acquisition action for substantially the same project with the same 
contractor. Where an analysis of the profit weight to be assigned to the 
overhead pool has been made, that weight assigned may be used for future 
acquisitions with the same contractor until there is a change in the 
cost composition of the overhead pool or the contract circumstances, or 
the factors discussed in paragraph (d)(2)(iii)(C) of this section are 
involved.
    (iv) Other costs. Analysis of this factor should include all other 
direct costs associated with contractor performance (e.g., travel and 
relocation, direct

[[Page 47]]

support, and consultants). Analysis of these items of cost should 
include, the significance of the cost of contract performance, nature of 
the cost, and how much they contribute to contract performance. 
Normally, travel costs require minimal administrative effort by the 
contractor and, therefore, usually receive a weight no greater than 1%. 
Also, the contractor may designate individuals as ``consultants'' but in 
reality these individuals may be obtained by the contractor to 
supplement its workforce in the performance of routine duties required 
by contract. These costs would normally receive a minimum weight. 
However, there will be instances when the contractor may be required to 
locate and obtain the services of consultants having expertise in fields 
such as medicine or human services. In these instances, the contractor 
will be required to expend greater managerial and technical effort to 
obtain these services and, consequently, the costs should receive a much 
greater weight.
    (3) Other factors (i) Contract cost risk. The contract type employed 
basically determines the degree of cost risk assumed by the contractor. 
For example, where a portion of the risk has been shifted to the 
Government through cost-reimbursement provisions, unusual contingency 
provisions, or other risk-reducing measures, the amount of profit should 
be less than where the contractor assumes all the risk.
    (A) In developing the prenegotiation profit objective, the 
contracting officer will need to consider the type of contract 
anticipated to be negotiated and the contractor risk associated 
therewith when selecting the position in the weight range for profit 
that is appropriate for the risk to be borne by the contractor. This 
factor should be one of the most important in arriving at prenegotiation 
profit objective. Evaluation of this risk requires a determination of 
the degree of cost responsibility the contractor assumes; the 
reliability of the cost estimates in relation to the task assumed; and 
the complexity of the task assumed by the contractor. This factor is 
specifically limited to the risk of contract costs. Thus, risks on the 
part of the contractor such as reputation, losing a commercial market, 
risk of losing potential profits in other fields, or any risk which 
falls on the contracting office, such as the risk of not acquiring a 
satisfactory report, are not within the scope of this factor.
    (B) The first and basic determination of the degree of cost 
responsibility assumed by the contractor is related to the sharing of 
total risk of contract cost by the Government and the contractor through 
the selection of contract type. The extremes are a cost-plus-a-fixed-fee 
contract requiring the contractor to use its best efforts to perform a 
task and a firm fixed-price contract for a service or a complex item. A 
cost-plus-a-fixed-fee contract would reflect a minimum assumption of 
cost responsibility, whereas a firm-fixed-price contract would reflect a 
complete assumption of cost responsibility. Where proper contract 
selection has been made, the regard for risk by contract type would 
usually fall into the following percentage ranges:

------------------------------------------------------------------------
                                                                 Percent
------------------------------------------------------------------------
Cost-reimbursement type contracts.............................       0-3
Fixed-price type contracts....................................       2-7
------------------------------------------------------------------------

    (C) The second determination is that of the reliability of the cost 
estimates. Sound price negotiation requires well-defined contract 
objectives and reliable cost estimates. Prior experience assists the 
contractor in preparing reliable cost estimates on new acquisitions for 
similar related efforts. An excessive cost estimate reduces the 
possibility that the cost of performance will exceed the contract price, 
thereby reducing the contractor's assumption of contract cost risk.
    (D) The third determination is that of the difficulty of the 
contractor's task. The contractor's task can be difficult or easy, 
regardless of the type of contract.
    (E) Contractors are likely to assume greater cost risk only if 
contracting officers objectively analyze the risk incident to proposed 
contracts and are willing to compensate contractors for it. Generally, a 
cost-plus-fixed fee contract will not justify a reward for risk in 
excess of 0.5 percent, nor will a firm fixed-price contract justify a 
reward of

[[Page 48]]

less than the minimum in the structured approach. Where proper contract-
type selection has been made, the reward for risk, by contract type, 
will usually fall into the following percentage ranges:
    (1) Type of contract and percentage ranges for profit objectives 
developed by using the structured approach for research and development 
and manufacturing contracts:

------------------------------------------------------------------------
                                                       Percent
------------------------------------------------------------------------
Cost-Plus-fixed fee.......................  0 to 0.5
Cost-plus-incentive fee:
  With cost incentive only................  1 to 2
  With multiple incentives................  1.5 to 3
Fixed-price-incentive:
  With cost incentive only................  2 to 4
  With multiple incentives................  3 to 5
  Prospective price redetermination.......  3 to 5
  Firm fixed-price........................  5 to 7
------------------------------------------------------------------------

    (2) Type of contract and percentage ranges for profit objectives 
developed by using the structured approach for service contracts:

------------------------------------------------------------------------
                                                       Percent
------------------------------------------------------------------------
Cost-plus-fixed-fee.......................  0 to 0.5
Cost-plus-incentive fee...................  1 to 2
Fixed-price incentive.....................  2 to 3
Firm fixed-price..........................  3 to 4
------------------------------------------------------------------------

    (F) These ranges may not be appropriate for all acquisitions. For 
instance, a fixed-price-incentive contract that is closely priced with a 
low ceiling price and high incentive share may be tantamount to a firm 
fixed-price contract. In this situation, the contracting officer may 
determine that a basis exists for high confidence in the reasonableness 
of the estimate and that little opportunity exists for cost reduction 
without extraordinary efforts. On the other hand, a contract with a high 
ceiling and low incentive formula can be considered to contain cost-plus 
incentive-fee contract features. In this situation, the contracting 
officer may determine that the Government is retaining much of the 
contract cost responsibility and that the risk assumed by the contractor 
is minimal. Similarly, if a cost-plus-incentive-fee contract includes an 
unlimited downward (negative) fee adjustment on cost control, it could 
be comparable to a fixed-price-incentive contract. In such a pricing 
environment, the contracting officer may determine that the Government 
has transferred a greater amount of cost responsibility to the 
contractor than is typical under a normal cost-plus-incentive-fee 
contract.
    (G) The contractor's subcontracting program may have a significant 
impact on the contractor's acceptance or risk under a contract form. It 
could cause risk to increase or decrease in terms of both cost and 
performance. This consideration should be a part of the contracting 
officer's overall evaluation in selecting a factor to apply for cost 
risk. It may be determined, for instance, that the prime contractor has 
effectively transferred real cost risk to a subcontractor and the 
contract cost risk evaluation may, as a result, be below the range which 
would otherwise apply for the contract type being proposed. The contract 
cost risk evaluation should not be lowered, however, merely on the basis 
that a substantial portion of the contract costs represents subcontracts 
without any substantial transfer of contractor's risk.
    (H) In making a contract cost risk evaluation in an acquisition 
action that involves definitization of a letter contract, unpriced 
change orders, and unpriced orders under basic ordering agreements, 
consideration should be given to the effect on total contract cost risk 
as a result of having partial performance before definitization. Under 
some circumstances it may be reasoned that the total amount of cost risk 
has been effectively reduced. Under other circumstances it may be 
apparent that the contractor's cost risk remained substantially 
unchanged. To be equitable, the determination of profit weight for 
application to the total of all recognized costs, both those incurred 
and those yet to be expended, must be made with consideration to all 
attendant circumstances--not just the portion of costs incurred or 
percentage of work completed prior to definitization.
    (I) Time and material and labor hour contracts will be considered to 
be cost-plus-a-fixed-fee contracts for the purpose of establishing 
profit weights unless otherwise exempt under paragraph (b)(1)(ii) of 
this section in the evaluation of the contractor's assumption of 
contract cost risk.

[[Page 49]]

    (ii) Investment. HHS encourages its contractors to perform their 
contracts with the minimum of financial, facilities, or other assistance 
from the Government. As such, it is the purpose of this factor to 
encourage the contractor to acquire and use its own resources to the 
maximum extent possible. The evaluation of this factor should include an 
analysis of the following:
    (A) Facilities. (Including equipment). To evaluate how this factor 
contributes to the profit objective requires knowledge of the level of 
facilities utilization needed for contract performance, the source and 
financing of the required facilities, and the overall cost effectiveness 
of the facilities offered. Contractors who furnish their own facilities 
which significantly contribute to lower total contract costs should be 
provided with additional profit. On the other hand, contractors who rely 
on the Government to provide or finance needed facilities should receive 
a corresponding reduction in profit. Cases between these examples should 
be evaluated on their merits with either positive or negative 
adjustments, as appropriate, in profit being made. However, where a 
highly facilitized contractor is to perform a contract which does not 
benefit from this facilitization or where a contractor's use of its 
facilities has a minimum cost impact on the contract, profit need not be 
adjusted. When applicable, the prospective contractor's computation of 
facilities capital cost of money for pricing purposed under CAS 414 can 
help the contracting officer identify the level of facilities investment 
to be employed in contract performance.
    (B) Payments. In analyzing this factor, consideration should be 
given to the frequency of payments by the Government to the contractor. 
The key to this weighting is to give proper consideration to the impact 
the contract will have on the contractor's cash flow. Generally, 
negative consideration should be given for advance payments and payments 
more frequent than monthly with maximum reduction being given as the 
contractor's working capital approaches zero. Positive consideration 
should be given for payments less frequent than monthly with additional 
consideration given for a capital turn-over rate on the contract which 
is less than the contractor's or the industry's normal capital turn-over 
rate.
    (iii) Performance. (Cost-control and other past accomplishments.) 
The contractor's past performance should be evaluated in such areas as 
quality of service or product, meeting performance schedules, efficiency 
in cost control (including need for and reasonableness of cost 
incurred), accuracy and reliability of previous cost estimates, degree 
of cooperation by the contractor (both business and technical), timely 
processing of changes and compliance with other contractual provisions, 
and management of subcontract programs. Where a contractor has 
consistently achieved excellent results in these areas in comparison 
with other contractors in similar circumstances, this performance merits 
a proportionately greater opportunity for profit. Conversely, a poor 
record in this regard should be reflected in determining what 
constitutes a fair and reasonable profit.
    (iv) Federal socioeconomic programs. This factor, which may apply to 
special circumstances or particular acquisitions, relates to the extent 
of a contractor's successful participation in Government sponsored 
programs such as small business, small disadvantaged business, women-
owned small business, service-disabled veterans, handicapped sheltered 
workshops, and energy conservation efforts. The contractor's policies 
and procedures which energetically support Government socioeconomic 
programs and achieve successful results should be given positive 
considerations. Conversely, failure or unwillingness on the part of the 
contractor to support Government socioeconomic programs should be viewed 
as evidence of poor performance for the purpose of establishing a profit 
objective.
    (v) Special situations (A) Inventive and developmental 
contributions. The extent and nature of contractor-initiated and 
financed independent development should be considered in developing the 
profit objective, provided that the contracting officer has made a 
determination that the effort will benefit the

[[Page 50]]

contract. The importance of the development in furthering health and 
human services purposes, the demonstrable initiative in determining the 
need and application of the development, the extent of the contractor's 
cost risk, and whether the development cost was recovered directly or 
indirectly from Government sources should be weighed.
    (B) Unusual pricing agreements. Occasionally, unusual contract 
pricing arrangements are made with the contractor wherein it agrees to 
cost ceilings, e.g., a ceiling on overhead rates for conditions other 
than those discussed at FAR 42.707. In these circumstances, the 
contractor should receive favorable consideration in developing the 
profit objective.
    (C) Negative factors. Special situations need not be limited to 
those which only increase profit levels. A negative consideration may be 
appropriate when the contractor is expected to obtain spin-off-benefits 
as a direct result of the contract (e.g., products or services with 
commercial application).
    (4) Facilities capital cost of money. When facilities capital cost 
of money (cost of capital committed to facilities) is included as an 
item of cost in the contractor's proposal, a reduction in the profit 
objective shall be made in an amount equal to the amount of facilities 
capital cost of money allowed in accordance with the Facilities Capital 
Cost-of Money Cost Principal. If the contractor does not propose this 
cost, a provision must be inserted in the contract that facilities 
capital cost of money is not an allowable cost.

[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76499, Dec. 20, 2006]

                   Subpart 315.6_Unsolicited Proposals



Sec. 315.605  Content of unsolicited proposals.

    (d) Certification by offeror--To ensure against contacts between 
Department employees and prospective offerors which would exceed the 
limits of advance guidance set forth in FAR 15.604 resulting in an 
unfair advantage to an offeror, the contracting officer shall ensure 
that the following certification is furnished to the prospective offeror 
and the executed certification is included as part of the resultant 
unsolicited proposal:

                          Unsolicited Proposal

                        Certification by Offeror

    This is to certify, to the best of my knowledge and belief, that:
    (a) This proposal has not been prepared under Government 
supervision.
    (b) The methods and approaches stated in the proposal were developed 
by this offeror.
    (c) Any contact with employees of the Department of Health and Human 
Services has been within the limits of appropriate advance guidance set 
forth in FAR 15.604.
    (d) No prior commitments were received from departmental employees 
regarding acceptance of this proposal.

Date:___________________________________________________________________

Organization:___________________________________________________________

Name:___________________________________________________________________

Title:__________________________________________________________________

(This certification shall be signed by a responsible official of the 
proposing organization or a person authorized to contractually obligate 
the organization.)



Sec. 315.606  Agency procedures.

    (a) The HCA is responsible for establishing procedures to comply 
with FAR 15.606(a).
    (b) The HCA or the HCA's designee shall be the point of contact for 
coordinating the receipt and handling of unsolicited proposals.

[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76500, Dec. 20, 2006]



Sec. 315.606-1  Receipt and initial review.

    (d) An unsolicited proposal shall not be refused consideration 
merely because it was initially submitted as a grant application. 
However, contracts shall not be awarded on the basis of unsolicited 
proposals which have been rejected for grant support on the grounds that 
they lack scientific merit.



Sec. 315.609  Limited use of data.

    The legend, Use and Disclosure of Data, prescribed in FAR 15.609(a) 
is to be used by the offeror to restrict the use of data for evaluation 
purposes only. However, data contained within the unsolicited proposal 
may have to be disclosed as a result of a request submitted pursuant to 
the Freedom of

[[Page 51]]

Information Act. Because of this possibility, the following notice shall 
be provided to all prospective offerors of unsolicited proposals:

    The Government will attempt to comply with the ``Use and Disclosure 
of Data'' legend.
    However, the Government may not be able to withhold a record (data, 
document, etc.) nor deny access to a record requested by an individual 
(the public) when an obligation is imposed on the Government under the 
Freedom of Information Act, 5 U.S.C. 552, as amended. The Government 
determination to withhold or disclose a record will be based upon the 
particular circumstances involving the record in question and whether 
the record may be exempted from disclosure under the Freedom of 
Information Act. Records which the offeror considers to be trade secrets 
and commercial or financial information and privileged or confidential 
must be identified by the offeror as indicated in the referenced legend.

[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76500, Dec. 20, 2006]

                       PART 316_TYPES OF CONTRACTS

               Subpart 316.3_Cost-Reimbursement Contracts

Sec.

Sec. 316.307 Contract clauses.

Sec. 316.505 Ordering.

   Subpart 316.6_Time-and-Materials, Labor-Hour, and Letter Contracts


Sec. 316.603 Letter contracts.

Sec. 316.603-3 Limitations.

Sec. 316.603-70 Information to be furnished when requesting authority to 
          issue a letter contract.

Sec. 316.603-71 Approval for modifications to letter contracts.

                        Subpart 316.7_Agreements


Sec. 316.770 Unauthorized types of agreements.

Sec. 316.770-2 Memorandums of understanding.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4243, Jan. 17, 2001, unless otherwise noted.

               Subpart 316.3_Cost-Reimbursement Contracts



Sec. 316.307  Contract clauses.

    (a) If the contract is with a hospital (profit or nonprofit) for 
research and development, modify the ``Allowable Cost and Payment'' 
clause at FAR 52.216-7 by deleting from paragraph (a) the words 
``Subpart 31.2 of the Federal Acquisition Regulation (FAR)'' and 
substituting ``45 CFR Part 74 Appendix E.''
    (j) The contracting officer shall insert the clause at 352.216-72, 
Additional Cost Principles, in all solicitations and resultant cost-
reimbursement contracts.



Sec. 316.505  Ordering.

    (b)(5) The Department's task-order and delivery-order ombudsman is 
the Director, Strategic Acquisition Service, Program Support Center 
(PSC). The task-order and delivery-order ombudsmen for each of the 
Department's contracting activities are as follows:

AHRQ--Director, Office of Performance Accountability, Resources and 
    Technology
CDC--Chief Information Officer
CMS--Chief Operating Officer
FDA--Director, Office of Acquisitions and Grants Services
HRSA--Associate Administrator, Office of Administration and Financial 
    Management
Indian Health Service--Director, Office of Management Services
NIH--Senior Scientific Advisor for Extramural Research, Office of 
    Extramural Research (R&D) and Senior Advisor to the Director (Other 
    than R&D)
PSC--Director, Strategic Acquisition Service
SAMHSA--Executive Officer

[71 FR 76500, Dec. 20, 2006]

   Subpart 316.6_Time-and-Materials, Labor-Hour, and Letter Contracts



Sec. 316.603  Letter contracts.



Sec. 316.603-3  Limitations.

    An official one level above the Contracting Officer shall make the 
written determination.

[71 FR 76500, Dec. 20, 2006]

[[Page 52]]



Sec. 316.603-70  Information to be furnished when requesting authority 

to issue a letter contract.

    The following information should be included by the contracting 
officer in any memorandum requesting approval to issue a letter 
contract:
    (a) Name and address of proposed contractor.
    (b) Location where contract is to be performed.
    (c) Contract number, including modification number, if possible.
    (d) Brief description of work and services to be performed.
    (e) Performance or delivery schedule.
    (f) Amount of letter contract.
    (g) Estimated total amount of definitized contract.
    (h) Type of definitive contract to be executed (fixed price, cost-
reimbursement, etc.)
    (i) Statement of the necessity and advantage to the Government of 
the use of the proposed letter contract.
    (j) Statement of percentage of the estimated cost that the 
obligation of funds represents. In rare instances where the obligation 
represents 50 percent or more of the proposed estimated cost of the 
acquisition, a justification for that obligation must be included which 
would indicate the basis and necessity for the obligation (e.g., the 
contractor requires a large initial outlay of funds for major 
subcontract awards or an extensive purchase of materials to meet an 
urgent delivery requirement). In every case, documentation must assure 
that the amount to be obligated is not in excess of an amount reasonably 
required to perform the work.
    (k) Period of effectiveness of a proposed letter contract. If more 
than 180 days, complete justification must be given.
    (l) Statement of any substantive matters that need to be resolved.



Sec. 316.603-71  Approval for modifications to letter contracts.

    All letter contract modifications (amendments) must be approved one 
level above the contracting officer. Request for authority to issue 
letter contract modifications shall be processed in the same manner as 
requests for authority to issue letter contracts and shall include the 
following:
    (a) Name and address of the contractor.
    (b) Description of work and services.
    (c) Date original request was approved and indicate approving 
official.
    (d) Letter contract number and date issued.
    (e) Complete justification as to why the letter contract cannot be 
definitized at this time.
    (f) Complete justification as to why the level of funding must be 
increased.
    (g) Complete justification as to why the period of effectiveness is 
increased beyond 180 days, if applicable.
    (h) If the funding of the letter contract is to be increased to more 
than 50 percent of the estimated cost of the acquisition, the 
information required by 316.603-70(j) must be included.

                        Subpart 316.7_Agreements



Sec. 316.770  Unauthorized types of agreements.



Sec. 316.770-2  Memorandums of understanding.

    A ``memorandum of understanding'' is an unauthorized agreement, 
usually drafted during the course of negotiations, to modify mandatory 
FAR and HHSAR provisions in such a manner as to make them more 
acceptable to a prospective contractor. It may be used to bind the 
contracting officer in attempting to exercise rights given the 
Government under the contract, or may contain other matters directly 
contrary to the language of the solicitation or prospective contractual 
document. Use of memorandums of understanding is not authorized. Any 
change in a solicitation or contract shall be made by amendment or 
modification to that document. When a change to a prescribed contract 
clause is considered necessary, a deviation shall be requested.

                  PART 317_SPECIAL CONTRACTING METHODS

                          Subpart 317.2_Options

Sec.

Sec. 317.201 Definition.

[[Page 53]]


Sec. 317.204 Contracts.

  Subpart 317.71_Supply and Service Acquisitions Under the Government 
                         Employees Training Act.


Sec. 317.7100 Scope of subpart.

Sec. 317.7101 Applicable regulations.

Sec. 317.7102 Acquisition of training.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4244, Jan. 17, 2001, unless otherwise noted.

                          Subpart 317.2_Options



Sec. 317.201  Definitions.

    An option must:
    (a) Identify the supplies or services as a discrete option quantity 
in addition to the basic quantity of supplies or services to be 
delivered under the initial contract award;
    (b) Establish a price or specify a method of calculation which will 
make the price certain;
    (c) Be agreed to and included in the initial contract award; and
    (d) Permit the Government the right to exercise the option 
unilaterally.



Sec. 317.204  Contracts.

    The total of the basic and option periods shall not exceed 10 years 
in the case of services and the total of the basic and option quantities 
shall not exceed the requirement for 5 years in the case of supplies. 
These limitations do not apply to information technology contracts. 
However, statutes applicable to various classes of contracts may place 
additional restrictions on the length of contracts.

[70 FR 11583, Mar. 9, 2005]

  Subpart 317.71_Supply and Service Acquisitions Under the Government 
                         Employees Training Act



Sec. 317.7100  Scope of subpart.

    This subpart provides alternate methods for obtaining training under 
the Government Employees Training Act (GETA), 5 U.S.C. Chapter 41.



Sec. 317.7101  Applicable regulations.

    Basic policy, standards, and delegations of authority to approve 
training are contained in HHS Personnel Manual Instruction 410-1.



Sec. 317.7102  Acquisition of training.

    (a) Off-the-shelf training, whether for individuals or for groups of 
employees, shall be acquired under the GETA by officials delegated 
authority in HHS Transmittal 95.5, Personnel Manual (3/30/95).
    (b) Training must be acquired through the contracting office if 
there are costs for training course development or for modification of 
off-the-shelf training courses.

[[Page 54]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 319_SMALL BUSINESS PROGRAMS

                         Subpart 319.2_Policies

Sec.

Sec. 319.201 General policy.

               Subpart 319.5_Set-Asides for Small Business


Sec. 319.501 General.

Sec. 319.506 Withdrawing or modifying set-asides.

 Subpart 319.7_Subcontracting With Small Business, Small Disadvantaged 
            Business and Women-Owned Small Business Concerns


Sec. 319.705 Responsibilities of the contracting officer under the 
          subcontracting assistance program.

Sec. 319.705-5 Awards involving subcontracting plans.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4244, Jan. 17, 2001, unless otherwise noted.

                         Subpart 319.2_Policies



Sec. 319.201  General policy.

    (d) The functional management responsibilities for the Department's 
Small Business Program, (small, HUBZone, small disadvantaged, and women-
owned small business programs) are delegated to the Director of the 
Office of Small and Disadvantaged Business Utilization (OSDBU).
    (e)(1) The Department's Small Business Program shall be carried out 
by appointed small business specialists (SBS) co-located within the 
OPDIVs. Appointments, and termination of appointments, shall be made in 
writing by the Director, Office of Small and Disadvantaged Business 
Utilization (OSDBU). The Director, OSDBU, will exercise full management 
authority over small business specialists.
    (2) One or more qualified SBS shall be appointed in the following 
activities: Agency for Healthcare Research and Quality (AHRQ), Centers 
for Medicare & Medicaid Services (CMS), Substance Abuse and Mental 
Health Services Administration (SAMHSA), Food and Drug Administration 
(FDA), Health Resources and Services Administration (HRSA), Indian 
Health Service (IHS), National Institutes of Health (NIH), Centers for 
Disease Control (CDC), Program Support Center (PSC), and the Office of 
the Secretary (OS).

[66 FR 4244, Jan. 17, 2001, as amended at 71 FR 76500, Dec. 20, 2006]

               Subpart 319.5_Set-Asides For Small Business



Sec. 319.501  General.

    (e) Subsequent to the Contracting Officer's recommendation on Form 
HHS-653, Small Business Set-Aside Review Form, the SBS shall review each 
proposed acquisition strategy and either concur or non-concur with the 
Contracting Officer's recommendation. The Small Business 
Administration's Procurement Center Representative (SBA/PCR) shall also 
review the acquisition strategy and either concur or non-concur with the 
Contracting Officer's recommendation. If the Contracting Officer 
disapproves the SBS's and/or the SBA PCR's set-aside recommendation, the 
reasons must be documented on the Form HHS-653, and the form placed in 
the contract file. The Contracting Officer will make the final 
determination as to whether the proposed acquisition will be set-aside 
or not.

[71 FR 76501, Dec. 20, 2006]



Sec. 319.506  Withdrawing or modifying set-asides.

    (d) Immediately upon notice from the contracting officer, the SBS 
shall provide telephone notification regarding all set-aside withdrawals 
to the OSDBU Director.

[[Page 55]]

 Subpart 319.7_Subcontracting With Small Business, Small Disadvantaged 
            Business and Women-Owned Small Business Concerns



Sec. 319.705  Responsibilities of the contracting officer under the 

subcontracting assistance program.



Sec. 319.705-5  Awards involving subcontracting plans.

    (a)(3) The SBA PCR shall be allowed a period of one to five working 
days to review the contract award package, depending upon the 
circumstances and complexity of the individual acquisition.

  PART 323_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
       TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

                    Subpart 323.70_Safety and Health

Sec.

Sec. 323.7000 Scope of subpart.

Sec. 323.7001 Policy.

Sec. 323.7002 Actions required.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4245, Jan. 17, 2001, unless otherwise noted.

                    Subpart 323.70_Safety and Health



Sec. 323.7000  Scope of subpart.

    This subpart prescribes the use of a safety and health clause in 
contracts involving hazardous materials or operations, and provides 
procedures for administering safety and health provisions.



Sec. 323.7001  Policy.

    Various statutes and regulations (e.g. Walsh-Healy Act; Service 
Contract Act) require adherence to minimum safety and health standards 
by contractors engaged in potentially hazardous work. The guidance 
contained in FAR subpart 23.3 shall be used for hazardous materials as 
the primary reference. When the guidance is judged insufficient or does 
not meet the safety and health situation in the instant acquisition, 
this subpart shall be followed.



Sec. 323.7002  Actions required.

    (a) Contracting activities. Contracting activities shall use the 
clause set forth in 352.223-70, or a clause reading substantially the 
same, in prospective contracts and subcontracts involving hazardous 
materials or operations for the following:
    (1) Services or products;
    (2) Research, development, or test projects;
    (3) Transportation of hazardous materials; and
    (4) Construction, including construction of facilities on the 
contractor's premises.
    (b) Safety officers. OPDIV safety officers shall advise and assist 
initiators of acquisition requests and contracting officers in:
    (1) Determining whether safety and health provisions should be 
included in a prospective contract;
    (2) Evaluating a prospective contractor's safety and health 
programs; and
    (3) Conducting post-award reviews and surveillance to the extent 
deemed necessary.
    (c) Initiators. Initiators of acquisition requests for items 
described in paragraph (a) of this section shall:
    (1) During the preparation of a request for contract, and in the 
solicitation, ensure that hazardous materials and operations to be used 
in the performance of the contract are clearly identified; and
    (2) During the period of performance:
    (i) Apprise the contracting office 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.

        PART 324_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

             Subpart 324.1_Protection of Individual Privacy

Sec.

Sec. 324.000 Scope of subpart.

Sec. 324.102 General.

Sec. 324.103 Procedures.

[[Page 56]]

                Subpart 324.2_Freedom of Information Act


Sec. 324.203 Policy.

              Subpart 324.70_Confidentiality of Information


Sec. 324.7001 General.

Sec. 324.7002 Policy.

Sec. 324.7003 Applicability.

Sec. 324.7004 Required clause.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4245, Jan. 17, 2001, unless otherwise noted.

             Subpart 324.1_Protection of Individual Privacy



Sec. 324.000  Scope of subpart.

    This part prescribes policies and procedures that apply requirements 
of the Privacy Act of 1974 (5 U.S.C. 552a) (the Act) and OMB Circular A-
130, Revised, November 30, 2000, to Government contracts and cites the 
Freedom of Information Act (5 U.S.C. 552, as amended).

[70 FR 40, Jan. 3, 2005]



Sec. 324.102  General.

    (a) It is the Department's policy to protect the privacy of 
individuals to the maximum possible extent while permitting the exchange 
of records required to fulfill the Department's administrative and 
program responsibilities and its responsibilities for disclosing records 
to which the general public is entitled under the Freedom of Information 
Act (5 U.S.C. 552). The Privacy Act of 1974 and the Department's 
implementation under 45 CFR part 5b apply ``when an agency provides by a 
contract for the operation by or on behalf of the agency of a system of 
records to accomplish any agency function* * *'' The key factor is 
whether a departmental function is involved. Therefore, the Privacy Act 
requirements apply to a departmental contract when, under the contract, 
the contractor must maintain or operate a system of records to 
accomplish a departmental function.
    (e) The program official, and, as necessary, the official designated 
as the activity's Privacy Act Coordinator and the Office of General 
Counsel, shall determine the applicability of the Act to each proposed 
acquisition. The program official is required to include a statement in 
the request for contract indicating whether the Privacy Act is or is not 
applicable to the proposed acquisition.
    (f) Whenever the contracting officer is informed that the Privacy 
Act is not applicable, but the resultant contract will involve the 
collection of individually identifiable personal data by the contractor, 
the contracting officer shall include provisions to protect the 
confidentiality of the records and the privacy of individuals identified 
in the records (see subpart 324.70).



Sec. 324.103  Procedures.

    (a) All requests for contract shall be reviewed by the contracting 
officer to determine whether the Privacy Act requirements are 
applicable. The Privacy Act requirements are applicable when the 
contract will require the contractor to design, develop, or operate any 
Privacy Act system of records on individuals to accomplish an agency 
function. When applicable, the contracting officer shall include the 
solicitation notification and contract clause required by FAR 24.104 in 
the solicitation, and the contract clause in the resultant contract. In 
addition, the contracting officer shall ensure that the solicitation 
notification, contract clause, and other pertinent information specified 
in this subpart are included in any contract modification which results 
in the Privacy Act requirements becoming applicable to a contract.
    (b)(1) The Contracting Officer shall identify in the contract work 
statement the system(s) of records to which the Privacy Act and the 
implementing regulations are applicable.
    (2) The Contracting Officer shall include the clause specified in 
352.270-11 in Section H of any RFP or resulting contract to notify the 
contractor that it and its employees are subject to criminal penalties 
for violations of the Act (5 U.S.C. 552a(i)) to the same extent as HHS 
employees. The clause also requires that the contractor ensure that each 
of its employees knows the prescribed rules of conduct and each 
contractor employee is aware that he/she is subject to criminal 
penalties for violations of the Act. These provisions

[[Page 57]]

also apply to all subcontracts awarded under the contract which require 
the design, development or operation of a system of records. The 
Contracting Officer shall send the contractor a copy of 45 CFR part 5b, 
which includes the rules of conduct and other Privacy Act requirements.
    (c) The Contracting Officer shall specify in the contract work 
statement and award the disposition to be made of the system(s) of 
records upon completion of contract performance. The contract work 
statement may require the contractor to destroy the records, remove 
personal identifiers, or turn the records over to the Contracting 
Officer. If there is a legitimate need for a contractor to keep copies 
of the records after completion of a contract, the contractor must take 
measures, as approved by the Contracting Officer, to keep the records 
confidential and protect the individuals' privacy.
    (d) Whenever an acquisition is determined to be subject to the 
Privacy Act requirements, a ``system notice,'' prepared by the program 
official and describing the Department's intent to establish a new 
system of records on individuals, to make modifications to an existing 
system, or to disclose information in regard to an existing system, is 
required to be published in the Federal Register. A copy of the ``system 
notice'' shall be attached to the request for contract or purchase 
request. If a ``system notice'' is not attached, the contracting officer 
shall inquire about its status and shall obtain a copy from the program 
official for inclusion in the contract file. If a ``system notice'' has 
not been published in the Federal Register, the contracting officer may 
proceed with the acquisition but shall not award the contract until the 
``system notice'' is published, and publication is verified by the 
contracting officer.

[66 FR 4245, Jan. 17, 2001, as amended at 71 FR 76501, Dec. 20, 2006]

                Subpart 324.2_Freedom of Information Act



Sec. 324.203  Policy.

    (a) The Department's regulation implementing the Freedom of 
Information Act (FOIA), 5 U.S.C. 552, as amended, is set forth in 45 CFR 
part 5.
    (b) The Contracting Officer, upon receiving a Freedom of Information 
Act (FOIA) request, shall follow Department and OPDIV procedures. As 
necessary, actions should be coordinated with the cognizant Freedom of 
Information (FOI) Officer and the General Law Division of the Office of 
General Counsel. The Contracting Officer must remember that only the FOI 
Officer has the authority to release or deny release of records. While 
the Contracting Officer should be familiar with the entire FOIA 
regulation in 45 CFR part 5, particular attention should be focused on 
Sec. Sec.  5.65 and 5.66; also of interest are Sec. Sec.  5.32, 5.33, 
and 5.35.

[66 FR 4245, Jan. 17, 2001. Redesignated and amended at 71 FR 76501, 
Dec. 20, 2006]

              Subpart 324.70_Confidentiality of Information



Sec. 324.7001  General.

    In performance of certain HHS contracts, it is necessary for the 
contractor to generate data, or be furnished data by the Government, 
which is about individuals, organizations, or Federal programs. This 
subpart and the accompanying contract clause require contractors to 
prudently handle disclosure of certain types of information not subject 
to the Privacy Act or the HHS human subject regulations set forth in 45 
CFR part 46. This subpart and contract clause address the kinds of data 
to be generated by the contractor and/or data to be furnished by the 
Government that are considered confidential and how it should be 
treated.



Sec. 324.7002  Policy.

    It is the policy of HHS to protect personal interests of 
individuals, corporate interests of non-governmental organizations, and 
the capacity of the Government to provide public services when 
information from or about individuals, organizations, or Federal 
agencies is provided to or obtained by contractors in performance of HHS 
contracts. This protection depends on the contractor's recognition and 
proper

[[Page 58]]

handling of the information. As a result, the ``Confidentiality of 
Information'' contract clause was developed.



Sec. 324.7003  Applicability.

    (a) The ``Confidentiality of Information'' clause, set forth in 
352.224-70, should be used in solicitations and resultant contracts 
whenever the need exists to keep information confidential. Examples of 
situations where the clause may be appropriate include:
    (1) Studies performed by the contractor which generate information 
or involve Government-furnished information that is personally 
identifiable, such as medical records, vital statistics, surveys, and 
questionnaires;
    (2) Contracts which involve the use of salary structures, wage 
schedules, proprietary plans or processes, or confidential financial 
information of organizations other than the contractor's; and
    (3) Studies or research which may result in preliminary or 
invalidated findings which, upon disclosure to the public, might create 
erroneous conclusions which, if acted upon, could threaten public health 
or safety.
    (b) With regard to protecting individuals, this subpart and contract 
clause are not meant to regulate or control the method of selecting 
subjects and performing studies or experiments involving them. These 
matters are dealt with in the HHS regulation entitled ``Protection of 
Human Subjects,'' 45 CFR Part 46. If a system of records under contract, 
or portions thereof, is determined to be subject to the requirements of 
the Privacy Act, in accordance with FAR 24.1 and 324.1 and Title 45 CFR 
part 5b, the procedures cited in those references are applicable and the 
Privacy Act contract clause shall be included in the contract. If the 
contract also involves confidential information, as described in this 
section, which is not subject to the Privacy Act, the contract shall 
include the ``Confidentiality of Information'' clause in addition to the 
Privacy Act clause.



Sec. 324.7004  Required clause.

    The clause set forth in 352.224-70 shall be included in any RFP and 
resultant contract(s) where it has been determined that confidentiality 
of information provisions may apply. Any RFP announcing the intent to 
include this clause in any resultant contract(s) shall indicate, as 
specifically as possible, the types of data which would be covered and 
requirements for handling the data.

[[Page 59]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                      PART 328_BONDS AND INSURANCE

                         Subpart 328.3_Insurance

Sec.

Sec. 328.301 Policy.

Sec. 328.311 Solicitation provision and contract clause on liability 
          insurance under cost-reimbursement contracts.

Sec. 328.311-2 Agency solicitation provisions and contract clauses.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4247, Jan. 17, 2001, unless otherwise noted.

                         Subpart 328.3_Insurance



Sec. 328.301  Policy.

    It is Department policy to limit the Government's reimbursement of 
its contractors' liability to third persons for claims not covered by 
insurance in cost-reimbursement contracts to the Limitation of Funds or 
Limitation of Cost clause of the contract. In addition, the amount of 
the Government's reimbursement will be limited to final judgments or 
settlements approved in writing by the Government.



Sec. 328.311  Solicitation provision and contract clause on liability 

insurance under cost-reimbursement contracts.



Sec. 328.311-2  Agency solicitation provisions and contract clauses.

    The contracting officer shall insert the clause at 352.228-7, 
Insurance--Liability to Third Persons, in all solicitations and 
resulting cost-reimbursement contracts, in lieu of the clause at FAR 
52.228-7 required by FAR 28.311-1. This is an authorized deviation.

                   PART 330_COST ACCOUNTING STANDARDS

                 Subpart 330.2_CAS Program Requirements

Sec.

Sec. 330.201 Contract requirements.

Sec. 330.201-5 Waiver.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4247, Jan. 17, 2001, unless otherwise noted.

                 Subpart 330.2_CAS Program Requirements



Sec. 330.201  Contract requirements.



Sec. 330.201-5  Waiver.

    (c) The requirements of FAR 30.201-5 shall be exercised by the 
Director, Division of Acquisition Policy (DAP). Requests shall be 
forwarded through normal acquisition channels to the DAP.

[71 FR 76501, Dec. 20, 2006]

                       PART 332_CONTRACT FINANCING

         Subpart 332.4_Advance Payments for Non-Commercial Items

Sec.

Sec. 332.402 General.

Sec. 332.403 Applicability.

Sec. 332.407 Interest.

Sec. 332.409 Contracting officer action.

Sec. 332.409-1 Recommendation for approval.

             Subpart 332.5_Progress Payments Based on Costs


Sec. 332.501 General.

Sec. 332.501-2 Unusual progress payments.

                     Subpart 332.7_Contract Funding


Sec. 332.702 Policy.

Sec. 332.703 Contract funding requirements.

Sec. 332.703-1 General.

Sec. 332.704 Limitations of cost or funds.

Sec. 332.705-2 Clauses for limitation of costs or funds.

Subpart 332.9--Prompt Payment [Reserved]

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4247, Jan. 17, 2001, unless otherwise noted.

         Subpart 332.4_Advance Payments for Non-Commercial Items



Sec. 332.402  General.

    (e) The HCA shall determine whether an advance payment is in the 
public interest in accordance with FAR

[[Page 60]]

32.402(c)(1)(iii)(A). This authority is non delegable.

[71 FR 76501, Dec. 20, 2006]



Sec. 332.403  Applicability.

    All contracts for research work with educational institutions 
located in the United States shall provide for financing by use of 
advance payments, in reasonable amounts, unless otherwise prohibited by 
law.



Sec. 332.407  Interest.

    (d) The HCA (not delegable) is authorized to make the determinations 
in FAR 32.407(d) and as follows. Interest-free advance payments may also 
be approved for educational institutions and other nonprofit 
organizations, whether public or private, performing work under 
nonprofit contracts (without fee) involving health services, educational 
programs, or social service programs, such as:
    (1) Community health representative services for an Indian Tribe or 
Band;
    (2) Narcotic addict rehabilitative services;
    (3) Comprehensive health care service program for Model Neighborhood 
programs;
    (4) Planning and development of health maintenance organizations;
    (5) Dissemination of information derived from educational research;
    (6) Surveys or demonstrations in the field of education;
    (7) Producing or distributing educational media for handicapped 
persons including captioned films for the hearing impaired;
    (8) Operation of language or area centers;
    (9) Conduct of biomedical research and support services;
    (10) Research surveys or demonstrations involving the training and 
placement of health manpower and health professionals, and dissemination 
of related information; and
    (11) Surveys or demonstrations in the field of social service.

[66 FR 4247, Jan. 17, 2001, as amended at 71 FR 76501, Dec. 20, 2006]



Sec. 332.409  Contracting officer action.



Sec. 332.409-1  Recommendation for approval.

    The information in FAR 32.409-1 (or FAR 32.409-2) shall be 
transmitted to the HCA in the form of a briefing memorandum.

              Subpart 332.5_Progress Payments Based on Cost



Sec. 332.501  General.



Sec. 332.501-2  Unusual progress payments.

    (a)(3) The approval of an unusual progress payment shall be made by 
the HCA (not delegable).

[71 FR 76501, Dec. 20, 2006]

                     Subpart 332.7_Contract Funding



Sec. 332.702  Policy.

    An incrementally funded contract is a multiple year contract in 
which funds are allocated to cover specific phases or increments of 
performance.
    (a) Incremental funding may be used in cost-reimbursement type 
contracts for the acquisition of severable services. It shall not be 
used in contracts for construction or architect-engineer services. 
Incremental funding allows severable cost-reimbursement type contracts 
awarded for more than one year to be funded from succeeding fiscal 
years.
    (b) It is Departmental policy that multiple year contracts be fully 
funded whenever possible. However, incrementally funded contracts may be 
used when:
    (1) A project, which is part of an approved program, is anticipated 
to be of multiple year duration, but funds are not currently available 
to cover the entire project;
    (2) The project represents a valid need for the fiscal year in which 
the contract is awarded and for the succeeding fiscal years of the 
project's duration;
    (3) The project is so significant to the approved program that there 
is reasonable assurance that it will command a high priority for 
proposed appropriations to cover the entire multiple year duration; and

[[Page 61]]

    (4) The statement of work is specific and is defined by separate 
phases or increments so that, at the completion of each, progress can be 
effectively measured.

[71 FR 76501, Dec. 20, 2006]



Sec. 332.703  Contract funding requirements.



Sec. 332.703-1  General.

    (b) The following general guidelines are applicable to incrementally 
funded contracts:
    (1) The estimated total cost of the project (all planned phases or 
increments) is to be taken into consideration when determining the 
requirements which must be met before entering into the contract; i.e., 
justification for noncompetitive acquisition, approval of award, etc.
    (2) The RFP and resultant contract are to include a statement of 
work which describes the total project covering the proposed multiple 
year period of performance and indicating timetables consistent with 
planned phases or increments and corresponding allotments of funds.
    (3) Offerors' technical and cost proposals must include the entire 
project and shall show distinct phases or increments and the multiple 
year period of performance.
    (4) Negotiations will be conducted based upon the total project, 
including all planned phases or increments, and the multiple year period 
of performance.
    (5) Sufficient funds must be obligated under the basic contract to 
cover no less than the first year of performance, unless the Contracting 
Officer determines it is advantageous to the Government to fund the 
contract for a lesser period. In that event, the Contracting Officer 
shall ensure that the obligated funds are sufficient to cover a complete 
phase or increment of performance representing a material and measurable 
part of the total project and the period of time that the funds cover 
shall be stated in the contract.
    (6) An incrementally funded contract must contain precise 
requirements for progress reports to be sent to the Project and 
Contracting Officers. These reports will enable the contract to be 
effectively monitored. The Project Officer shall prepare periodic 
performance evaluation reports and provide them to the Contracting 
Officer.

[71 FR 76502, Dec. 20, 2006]



Sec. 332.704  Limitation of cost or funds.

    See subpart 342.71, ``Administrative Actions for Cost Overruns,'' 
for procedures for handling anticipated cost overruns.

[71 FR 76502, Dec. 20, 2006]



Sec. 332.705-2  Clauses for limitation of costs or funds.

    (c)(1) When using the Limitation of Funds clause (FAR 52.232-22) in 
the solicitation and resultant incrementally funded contract, the 
contracting officer shall insert the following legend between the clause 
title and the clause text:

(This clause supersedes the Limitation of Cost clause found in the 
General Provisions of this contract.)

    (2) The contracting officer shall also include a clause reading 
substantially as that shown in 352.232-74 in the Special Provisions of 
the resultant incrementally funded contract.
    (3) The request for proposals must inform prospective offerors of 
the Department's intention to enter into an incrementally funded 
contract. Therefore, the contracting officer shall include the provision 
at 352.232-75 in the request for proposals whenever the use of 
incremental funding is contemplated.

Subpart 332.9--Prompt Payment [Reserved]

                PART 333_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 333.1_Protests

Sec.

Sec. 333.102 General.

Sec. 333.103 Protests to the agency.

Sec. 333.104 Protests to GAO.

                   Subpart 333.2_Disputes and Appeals


Sec. 333.203 Applicability.

Sec. 333.209 Suspected fraudulent claims.

Sec. 333.211 Contracting officer's decision.

[[Page 62]]


Sec. 333.212 Contracting officer's duties upon appeal.

Sec. 333.212-70 Formats.

Sec. 333.213 Obligation to continue performance.

Sec. 333.215-70 Additional contract clause.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4249, Jan. 17, 2001, unless otherwise noted.

                         Subpart 333.1_Protests



Sec. 333.102  General.

    (g)(1) The Office of Acquisition Management (Division of Acquisition 
Policy (DAP)) has been designated as the headquarters office to serve as 
the liaison for protests lodged with GAO. Within the Division of 
Acquisition Policy (DAP), the Departmental Protest Control Officer 
(DPCO) has been designated as the individual to be contacted by GAO.
    (2) Each contracting activity shall designate a protest control 
officer to serve as an advisor to the contracting officer and to monitor 
protests from the time of initial notification until the protest has 
been resolved. The protest control officer should be a senior 
acquisition specialist in the headquarters acquisition staff office. In 
addition, contracting 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, Division of 
Acquisition Policy (DAP).

[66 FR 4249, Jan. 17, 2001, as amended at 71 FR 76502, Dec. 20, 2006]



Sec. 333.103  Protests to the agency.

    (f)(1) The contracting officer is authorized to make the 
determination, using the criteria in FAR 33.104(b), to award a contract 
notwithstanding the protest after obtaining the concurrence of the 
contracting activity's protest control officer and the Office of General 
Counsel--Business and Administrative Law Division (OGC-BAL). If the 
protest has been lodged with the Secretary, is addressed to the 
Secretary, or requests referral to the Secretary, approval shall also be 
obtained from the Director, Division of Acquisition Policy (DAP) before 
making the award.
    (2) The contracting officer shall require written confirmation of 
any oral protest. To be considered timely, the written confirmation must 
be filed in accordance with the applicable provisions in 333.102(a). In 
the following cases, written protests received by the contracting 
officer before award shall be forwarded, through acquisition channels, 
to the DPCO for processing. Files concerning these protests shall be 
submitted in duplicate, or as otherwise specified by the DPCO and sent 
in the most expeditious manner, marked ``IMMEDIATE ACTION--PROTEST 
BEFORE AWARD'', and contain the documentation referenced in 
333.104(a)(3).
    (i) The protestant requests referral to the Secretary of Health and 
Human Services;
    (ii) The protest is known to have been lodged with the Comptroller 
General or the Secretary, or is addressed to either; or
    (iii) 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 Secretary or the 
Comptroller General. Otherwise, protests addressed to the contracting 
officer may be answered by the contracting officer, with the concurrence 
of the contracting activity's protest control officer and OGC-BAL.
    (3) Protests received after award shall be treated as indicated in 
FAR 33.103(f)(3).

[66 FR 4249, Jan. 17, 2001, as amended at 71 FR 76502, Dec. 20, 2006]



Sec. 333.104  Protests to GAO.

    (a) General procedures. (3)(ii) The DPCO shall process protests 
filed with GAO, whether pre- or post award. Protest files shall be 
prepared by the contracting office and distributed as follows: Two 
copies to the DPCO, one copy to the contracting activity's protest 
control officer, and one copy to OGC-GLD. In addition to the items 
listed in 33.104(a)(3)(ii)(A) through (G), the protest file shall 
include the following documents:
    (H) The current status of award. When award has been made, this 
shall

[[Page 63]]

include whether performance has commenced, shipment or delivery has been 
made, or a stop work order has been issued.
    (I) A copy of any mutual agreement to suspend work on a no-cost 
basis, when appropriate (see FAR 33.104(c)(4)).
    (J) Copies of the notice of protest given offerors and other parties 
when the notice is appropriate (see FAR 33.104(a)(2)).
    (K) A copy of the negotiation memorandum, when applicable.
    (L) The name and telephone number of the person in the contracting 
office who may be contacted for information relevant to the protest.
    (M) A copy of the competitive range memorandum.
    (N) The contracting officer's statement of facts and circumstances, 
including a discussion of the merits of the protest, and conclusions and 
recommendations, including documentary evidence on which they are based. 
The files shall be assembled in an orderly manner and shall have an 
index of enclosures and any document referred to therein.
    (4) The DPCO is responsible for making the necessary distributions 
referenced in FAR 33.104(a)(4).
    (5) The Contracting Officer shall furnish the protest file 
containing the documentation specified in paragraph (a)(3)(ii) of this 
section (with the exception of the contracting officer statement of 
facts and circumstances) and FAR 33.104(a)(3)(ii)(A) through (G) to the 
DPCO within fourteen (14) calendar days from receipt of the protest. The 
contracting officer shall submit the contracting officer's statement of 
facts and circumstances within twenty-one (21) calendar days from 
receipt of the protest. Since the statute allows only a short time 
period in which to respond to protests lodged with GAO, the Contracting 
Officer shall handle each protest on a priority basis. The DPCO shall 
submit copies of the protest file to GAO, the protestor, and any 
intervenors in accordance with FAR 33.104(a)(4)(i).
    (6) Since the DPCO will furnish the protest file to GAO, the 
protestor, and any intervenors, comments on the file from the protestor 
and any intervenors will be sent to the DPCO.
    (7) The DPCO, Division of Acquisition Policy (DAP), shall serve as 
the GAO point of contact for protests lodged with GAO.
    (b) Protests before award. (1) To make an award notwithstanding a 
protest, the Contracting Officer shall prepare a finding using the 
criteria in FAR 33.104(b)(1), have it executed by the HCA (not 
delegable), and forward it, along with a written request for approval to 
make the award, to the Deputy Assistant Secretary for Acquisition 
Management and Policy (DASAMP).
    (2) If the request to make an award notwithstanding the protest is 
approved by the Deputy Assistant Secretary for Acquisition Management 
and Policy (DASAMP), the DPCO shall notify GAO. Whether the request is 
approved or not, the DPCO shall telephonically notify the contracting 
activity's protest control officer of the decision of the Deputy 
Assistant Secretary for Acquisition Management and Policy (DASAMP), and 
the contracting activity's protest control officer shall immediately 
notify the Contracting Officer. The DPCO shall confirm the decision by 
memorandum to the contracting activity's protest control officer.
    (c) Protests after award. (2) If the Contracting Officer believes 
performance should be allowed to continue notwithstanding the protest, a 
finding shall be prepared by the Contracting Officer using the criteria 
in FAR 33.104(c)(2), executed by the HCA (not delegable), and forwarded, 
along with a written request for approval, to the Deputy Assistant 
Secretary for Acquisition Management and Policy (DASAMP). The same 
procedures for notification stated in paragraph (b)(2) of this section 
shall be followed.
    (d) Findings and notice. The written notice required by FAR 
33.104(d) shall be provided to the protestor and any intervenors by the 
DPCO.
    (g) Notice to GAO. The Deputy Assistant Secretary for Acquisition 
Management and Policy (DASAMP) shall be the official to comply with the 
requirements of FAR 33.104(g).

[71 FR 76502, Dec. 20, 2006]

[[Page 64]]

                   Subpart 333.2_Disputes and Appeals



Sec. 333.203  Applicability.

    (c) The Secretary has designated the Armed Services Board of 
Contract Appeals (ASBCA) as the authorized ``Board'' to hear and 
determine disputes for the Department.

[71 FR 76503, Dec. 20, 2006]



Sec. 333.209  Suspected fraudulent claims.

    The contracting officer shall submit any instance of a contractor's 
suspected fraudulent claim to the Office of the Inspector General for 
investigation.



Sec. 333.211  Contracting officer's decision.

    (a)(2) The contracting officer shall refer a proposed final decision 
to the Office of General Counsel-General Law Division (OGC-GLD), for 
advice as to the legal sufficiency and format before sending the final 
decision to the contractor. The contracting officer shall provide OGC-
GLD with the pertinent documents with the submission of each proposed 
final decision.
    (a)(4)(v) When using the paragraph in FAR 33.211 (a)(4)(v), the 
contracting officer shall insert the words ``Armed Services'' before 
each mention of the term ``Board of Contract Appeals''.
    (h) At any time within the period of appeal, the contracting officer 
may modify or withdraw his/her final decision. If an appeal from the 
final decision has been taken to the ASBCA, the contracting officer will 
forward his/her recommended action to OGC-GLD with the supplement to the 
contract file which supports the recommended correction or amendment.

[71 FR 76503, Dec. 20, 2006]



Sec. 333.212  Contracting officer's duties upon appeal.

    (a) Appeals shall be governed by the rules set forth in the ``Rules 
of the Armed Services Board of Contract Appeals,'' or by the rules 
established by the U.S. Court of Federal Claims, as appropriate.
    (b) The Office of General Counsel-General Law Division (OGC-GLD) is 
designated as the Government Trial Attorney to represent the Government 
in the defense of appeals before the ASBCA. A decision by the ASBCA will 
be transmitted by the Government Trial Attorney to the appropriate 
contracting officer for compliance in accordance with the ASBCA's 
decision.
    (c) If an appeal is filed with the ASBCA, the contracting officer 
shall assemble a file within 30 days of receipt of an appeal, or advice 
that an appeal has been filed, that consists of all documents pertinent 
to the appeal, including:
    (1) The decision and findings of fact from which the appeal is 
taken;
    (2) The contract, including specifications and pertinent 
modifications, plans and drawings;
    (3) All correspondence between the parties pertinent to the appeal, 
including the letter or letters of claim in response to which the 
decision was issued;
    (4) Transcripts of any testimony taken during the course of 
proceedings, and affidavits or statements of any witness on the matter 
in dispute made prior to the filing of the notice of appeal with the 
Board; and
    (5) Any additional information considered pertinent. The contracting 
officer shall furnish the appeal file to the Government Trial Attorney 
for review and approval. After approval, the contracting officer shall 
prepare four copies of the file, one for the ASBCA, one for the 
appellant, one for the Government Trial Attorney, and one for the 
contracting office.
    (d) At all times after the filing of an appeal, the contracting 
officer shall render whatever assistance is requested by the Government 
Trial Attorney. When an appeal is set for hearing, the concerned 
contracting officer shall be responsible for providing Government 
witnesses and specified physical and documentary evidence to the Trial 
Attorney. The Trial Attorney shall ensure the presence of all witnesses 
and documentary evidence at both the pre-hearing conference and hearing.
    (e) If a contractor which has filed an appeal with the ASBCA elects 
to accept fully the decision from which the appeal was taken, or any 
modification to it, and gives written notification of acceptance to the 
Government Trial Attorney or the concerned contracting

[[Page 65]]

officer, the Government Trial Attorney will notify the ASBCA of the 
disposition of the dispute in accordance with Rule 27 of the ASBCA.
    (f) If the contractor has elected to appeal to the U.S. Court of 
Federal Claims, the U.S. Department of Justice will represent the 
Department. However, the contracting officer shall still coordinate all 
actions through OGC-GLD.

[71 FR 76503, Dec. 20, 2006]



Sec. 333.212-70  Formats.

    (a) The following format is suggested for use in transmitting appeal 
files to the ASBCA:

Your reference:
(Docket No.)
(Name)
Recorder, Armed Services Board of Contract Appeals
Skyline Six 5109 Leesburg Pike
Falls Church, Virginia 22041

Dear (Name):
Transmitted herewith are documents relative to the appeal under Contract 
No. ---- with the ------------
(Name of contractor)
in accordance with the procedures under Rule 4. The Government Trial 
Attorney for this case is
(Insert General Law Division, Office of General Counsel, Department of 
Health and Human Services, 330 Independence Avenue, SW., Washington, DC 
20201).
The request for payment of charges resulting from the processing of this 
appeal should be addressed to:
(Insert name and address of cognizant finance office.)

Sincerely yours,

Contracting Officer
Enclosures

    (b) The following format is suggested for use in notifying the 
appellant that the appeal file was submitted to the ASBCA:

(Contractor Address)
________________________________________________________________________

________________________________________________________________________

Dear ------:
    An appeal file has been compiled relative to the appeal under 
Contract No. ------, and has been submitted to the Armed Services Board 
of Contract Appeals (ASBCA). The enclosed duplicate of the appeal file 
is identical to that submitted to the Board, except that contract 
documents which you already have been excluded. You may furnish or 
suggest any additional information deemed pertinent to the appeal to the 
Armed Services Board of Contract Appeals according to their rules.
    The ASBCA will provide you with further information concerning this 
appeal.
Sincerely yours,

Contracting Officer
Enclosure

[66 FR 4249, Jan. 17, 2001, as amended at 71 FR 76503, Dec. 20, 2006]



Sec. 333.213  Obligation to continue performance.

    (a) The Disputes clause at FAR 52.233-1 shall be used without the 
use of Alternate I. However, if the contracting officer determines that 
the Government's interest would be better served by use of paragraph (i) 
in Alternate I, he/she must request approval for its use from the chief 
of the contracting office.



Sec. 333.215-70  Additional contract clause.

    Use the clause at 352.333-7001, Choice of Law (Overseas), in 
solicitations and contracts when contract performance will be outside 
the United States, its possessions, and Puerto Rico, except as otherwise 
provided for in a government-to-government agreement.

[70 FR 40, Jan. 3, 2005]

[[Page 66]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

              PART 335_RESEARCH AND DEVELOPMENT CONTRACTING

Sec.

Sec. 335.070 Cost-sharing.

Sec. 335.070-1 Policy.

Sec. 335.070-2 Amount of cost-sharing.

Sec. 335.070-3 Method of cost-sharing.

Sec. 335.070-4 Contract award.

Sec. 335.071 Special determinations and findings affecting research and 
          development contracting.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4251, Jan. 17, 2001, unless otherwise noted.



Sec. 335.070  Cost-sharing.



Sec. 335.070-1  Policy.

    (a) The use of cost-sharing type contracts should be encouraged to 
contribute to the cost of performing research where there is a 
probability that the contractor will receive present or future benefits 
from participation, such as, increased technical know-how, training to 
employees, acquisition of equipment, use of background knowledge in 
future contracts, etc. Cost-sharing is intended to serve the mutual 
interests of the Government and the performing organization by helping 
to assure efficient utilization of the resources available for the 
conduct of research projects and by promoting sound planning and prudent 
fiscal policies by the performing organization. Encouragement should be 
given to organizations to contribute to the cost of performing research 
under contracts unless the contracting officer determines that a request 
for cost-sharing would not be appropriate because of the following 
circumstances:
    (1) The particular research objective or scope of effort for the 
project is specified by the Government rather than proposed by the 
performing organization. This would usually include any formal 
Government request for proposals for a specific project.
    (2) The research effort has only minor relevance to the non-Federal 
activities of the performing organization, and the organization is 
proposing to undertake the research primarily as a service to the 
Government.
    (3) The organization has little or no non-Federal sources or funds 
from which to make a cost contribution. Cost-sharing should generally 
not be requested if cost-sharing would require the Government to provide 
funds through some other means (such as fees) to enable the organization 
to cost-share. It should be recognized that those organizations which 
are predominantly engaged in research and development and have little or 
no production or other service activities may not be in a favorable 
position to make a cost contribution.
    (b) The responsibility for negotiating cost-sharing is that of the 
contracting office. Each research contract file should show whether the 
contracting officer considered cost-sharing appropriate for that 
particular contract and in what amount. If cost-sharing was not 
considered appropriate, the file must indicate the factual basis for 
that decision, e.g., ``Because the contractor will derive no benefits 
from this award that can be applied to its commercial activities, cost-
sharing is not considered appropriate.'' The contracting officer may 
wish to coordinate with the project officer before documenting this 
decision.
    (c) If the contracting officer considers cost-sharing to be 
appropriate for a research contract and the contractor refuses to accept 
this type of contract, the award may be made without cost-sharing, if 
the contracting officer concludes that payment of the full cost of the 
research effort is necessary in order to obtain the services of that 
particular contractor.



Sec. 335.070-2  Amount of cost-sharing.

    When cost-sharing is appropriate, use the following guidelines to 
determine the amount of cost participation by the contractor:
    (a) The amount of cost participation should depend on the extent to 
which the research effort or results are likely

[[Page 67]]

to enhance the performing organization's capability, expertise, or 
competitive position, and the value of this enhancement to the 
performing organization. It should be recognized that those 
organizations which are predominantly engaged in research and 
development have little or no production or other service activities and 
may not be in a favorable position to derive a monetary benefit from 
their research under Federal agreements. Therefore, contractor cost 
participation could reasonably range from as little as 1 percent or less 
of the total project cost, to more than 50 percent of the total project 
cost. Ultimately, the Contracting Officer should bear in mind that cost-
sharing is a negotiable item. As such, the amount of cost-sharing should 
be proportional to the anticipated value of the contractor's gain.
    (b) If the performing organization will not acquire title or the 
right to use inventions, patents, or technical information resulting 
from the research project, it would generally be appropriate to obtain 
less cost-sharing than in cases in which the performer acquires these 
rights.
    (c) A fee or profit will usually not be paid to the performing 
organization if the organization is to contribute to the cost of the 
research effort, but the amount of cost-sharing may be reduced to 
reflect the fact that the organization is foregoing its normal fee or 
profit in the research. However, if the research is expected to be of 
only minor value to the performing organization and if cost-sharing is 
not required by statute, it may be appropriate for the performer to make 
a contribution in the form of a reduced fee or profit rather than 
sharing costs of the project.
    (d) The organization's participation may be considered over the 
total term of the project so that a relatively high contribution in one 
year may be offset by a relatively low contribution in another.
    (e) A relatively low degree of cost-sharing may be appropriate if, 
in the view of the operating divisions or their subordinate elements, an 
area of research requires special stimulus in the national interest.

[66 FR 4251, Jan. 17, 2001, as amended at 71 FR 76504, Dec. 20, 2006]



Sec. 335.070-3  Method of cost-sharing.

    Cost-sharing on individual contracts may be accomplished either by a 
contribution of part or all of one or more elements of allowable cost of 
the work being performed, or by a fixed amount or stated percentage of 
the total allowable costs of the project. Costs so contributed may not 
be charged to the Government under any other grant or contract 
(including allocations to other grants or contracts as part of any 
independent research and development program).



Sec. 335.070-4  Contract award.

    In consonance with the Department's objectives of competition and 
support of the small business program, award of contracts should not be 
made solely on the basis of ability or willingness to cost-share. Awards 
should be made primarily on the contractor's competence and only after 
adequate competition has been obtained among large and small business 
organizations whenever possible. The offeror's willingness to share 
costs should not be considered in the technical evaluation process but 
as a business consideration, which is secondary to selecting the best 
qualified source.



Sec. 335.071  Special determinations and findings affecting research and 

development contracting.

    OPDIV heads for health agencies shall sign individual and class 
determinations and findings for:
    (a) Acquisition or construction of equipment or facilities on 
property not owned by the United States pursuant to 42 U.S.C. 241(a)(7); 
and
    (b) Use of an indemnification provision in a research contract 
pursuant to 42 U.S.C. 241(a)(7).

             PART 339_ACQUISITION OF INFORMATION TECHNOLOGY

Sec.

Sec. 339.201-10 Clarification.

Sec. 339.201-70 Required provision and contract clause.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 71 FR 76504, Dec. 20, 2006, unless otherwise noted.

[[Page 68]]



Sec. 339.201-10  Clarification.

    FAR Subpart 39.2, Electronic and Information Technology, requires 
Federal agencies to ensure that, when acquiring EIT, Federal employees 
with disabilities and members of the public with disabilities have 
access to and use of information and data that is comparable to 
individuals without disabilities. This EIT access requirement does not 
apply to a contractor's internal workplaces. EIT that is not used nor 
accessed by Federal employees or members of the public is not subject to 
the Architectural and Transportation Barriers Compliance Board (Access 
Board) standards. Contractors in their professional capacity are not 
members of the public for purposes of Section 508.



Sec. 339.201-70  Required provision and contract clause.

    When acquiring EIT, the Contracting Officer shall insert the 
provision at 352.270-19(a) in solicitations and the clause in 352.270-
19(b) in contracts and orders for projects that will develop, purchase, 
maintain, or use electronic and information technology (EIT), unless 
these EIT products and/or services are incidental to the project. (Note: 
Other exceptions to this requirement can be found at FAR 39.204.)

[[Page 69]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

                    PART 342_CONTRACT ADMINISTRATION

                    Subpart 342.7_Indirect Cost Rates

Sec.

Sec. 342.705 Final indirect cost rates.

                   Subpart 342.70_Contract Monitoring


Sec. 342.7001 Purpose.

Sec. 342.7002 Contract monitoring responsibilities.

Sec. 342.7003 Withholding of contract payments.

Sec. 342.7003-1 Policy.

Sec. 342.7003-2 Procedures.

Sec. 342.7003-3 Withholding payments.

         Subpart 342.71_Administrative Actions for Cost Overruns


Sec. 342.7100 Scope of subpart.

Sec. 342.7101 Contract administration.

Sec. 342.7101-1 General.

Sec. 342.7101-2 Procedures.

Sec. 342.7102 Contract modifications.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4252, Jan. 17, 2001, unless otherwise noted.

                    Subpart 342.7_Indirect Cost Rates



Sec. 342.705  Final indirect cost rates.

    (a) The Director, Division of Cost Allocation of the Program Support 
Center, within each servicing HHS regional office, has been delegated 
the authority to establish indirect cost rates, research patient care 
rates, and, as necessary, fringe benefit, computer, and other special 
costing rates for use in contracts and grants awarded to State and local 
governments, colleges and universities, hospitals, and other nonprofit 
organizations.
    (b) The Division of Financial Advisory Services of the National 
Institutes of Health has the authority to establish indirect cost rates, 
fringe benefit rates, etc., for use in contracts and grants awarded to 
commercial organizations.

[71 FR 76504, Dec. 20, 2006]

                   Subpart 342.70_Contract Monitoring



Sec. 342.7001  Purpose.

    Contract monitoring is an essential element of contract 
administration and is performed jointly by the Project Officer and the 
Contracting Officer. This subpart describes the Department's operating 
concepts.

[71 FR 76504, Dec. 20, 2006]



Sec. 342.7002  Contract monitoring responsibilities.

    (a) The contract establishes the obligations of both the Government 
and the contractor. The Contracting Officer is the only person 
authorized to make changes to the contract. The Contracting Officer must 
confirm all changes in writing.
    (b) The Contracting Officer is responsible for assuring compliance 
with all the terms and conditions of the contract. The Contracting 
Officer shall inform the contractor by letter (if not already stipulated 
in the contract) of the authorities and responsibilities of the 
Government personnel involved with the contract.
    (c) The Contracting Officer must depend on program, technical, and 
other personnel for assistance and advice in monitoring the contractor's 
performance, and in other areas of postaward administration. The 
Contracting Officer must assure that these individuals understand and 
carry out their assigned responsibilities. The individual roles and 
corresponding responsibilities typically involve, but are not limited 
to, the following:
    (1) The role of program and technical personnel in monitoring the 
contract is to assist and/or advise the Contracting Officer or act as 
his/her representative when so designated by the Contracting Officer. 
Activities may include:
    (i) Providing technical monitoring during contract performance, and 
issuing letters to the contractor and Contracting Officer relating to 
delivery, acceptance, or rejection in accordance with the terms of the 
contract;

[[Page 70]]

    (ii) Assessing contractor performance, including inspection and 
testing of products and evaluation of reports and data;
    (iii) Recommending necessary changes to the schedule of work and 
period of performance in order to accomplish the objectives of the 
contract. Program officials must provide the Contracting Officer a 
written request along with an appropriate justification and a funding 
document if additional funds are needed;
    (iv) Reviewing invoices/vouchers and recommending approval/
disapproval action by the Contracting Officer, to include comments 
regarding anything unusual discovered in the review;
    (v) Reviewing and recommending approval or disapproval of 
subcontractors, overtime, travel, and key personnel changes; and
    (vi) Participating, as necessary, in various phases of the contract 
closeout process.
    (2) The role of the Project Officer in monitoring the contract 
includes the applicable activities set forth in paragraph (c)(1) of this 
section. The Project Officer also shall do the following:
    (i) Submit periodic reports to the Contracting Officer that 
concisely explain the status of the contract, and include recommended 
actions for any problems reported. Provide the Contracting Officer with 
written notification of evaluation and approval/disapproval of contract 
deliverables and of completion of tasks or phases. The Contracting 
Officer or designee will provide the contractor with written 
notification of approval or disapproval and include a copy in the 
contract file;
    (ii) Monitor the technical aspects of the contract, identify 
existing and potential problems that threaten performance, and 
immediately inform the Contracting Officer of deviations from contract 
objectives or from any technical or delivery requirements;
    (iii) Immediately notify the head of the program office whenever it 
is determined that objectives are not being met and provide specific 
recommendations of actions to be taken. The Contracting Officer shall 
receive a copy of the Project Officer's report and recommendations;
    (iv) Within 120 days after contract completion, submit a final 
written assessment report to the Contracting Officer. The report should 
include analysis of the contractor's performance, including the contract 
and program objectives achieved and missed. A copy of the final 
assessment report shall be forwarded to the head of the program office 
responsible for the program for management review and follow-up, as 
necessary; and
    (v) Accompany and/or provide, when requested, technical support to 
the HHS auditor in the conduct of visual inspections.
    (3) The roles of the contract administrator, auditor, cost analyst, 
and property administrator are to assist and/or advise the Contracting 
Officer in postaward administration activities such as:
    (i) Evaluation of contractor systems and procedures, to include 
accounting policies and procedures, purchasing policies and practices, 
property accounting and control, wage and salary plans and rate 
structures, personnel policies and practices, etc.;
    (ii) Processing of disputes under the Disputes clause and any 
resultant appeals;
    (iii) Modification or termination of the contract; and
    (iv) Determination of the allowability of cost charges to incentive 
or cost-reimbursement type contracts and progress payments under fixed-
price contracts. This is especially important when award is made to new 
organizations or those with financial weaknesses.
    (d) The Contracting Officer is responsible for assuring that 
contractor performance and contract monitoring conform with contract 
terms. If performance is not satisfactory or if problems are 
anticipated, it is essential that the Contracting Officer take immediate 
action to protect the Government's rights under the contract. The 
Contracting Officer shall notify his/her immediate supervisor of 
problems that cannot be resolved within contract limitations and 
whenever contract or program objectives are not met. The notification 
shall include a statement of

[[Page 71]]

action being taken by the Contracting Officer.

[71 FR 76504, Dec. 20, 2006]



Sec. 342.7003  Withholding of contract payments.



Sec. 342.7003-1  Policy.

    (a) All solicitations and resultant contracts (other than awards 
made using simplified acquisition procedures) shall contain the 
withholding of contract payments clause at 352.232-9, and an excusable 
delays clause, or a clause which incorporates the definition of 
excusable delays. Use the excusable delays clause at 352.249-14 when the 
solicitation and resultant contract (other than purchase orders) does 
not contain a default or other excusable delays clause.
    (b) When appropriate, the Contracting Officer may withhold any 
contract payment when a required report is overdue, or the contractor 
fails to perform or deliver required work or services.

[71 FR 76505, Dec. 20, 2006]



Sec. 342.7003-2  Procedures.

    (a) The Contracting Officer is responsible for initiating immediate 
action to protect the Government's rights whenever the contractor fails 
to comply with either the delivery or reporting terms of the contract. 
Compliance with the reporting terms includes those reports to be 
submitted directly to the payment office. The payment office shall 
notify the Contracting Officer promptly when such a report is not 
submitted on time.
    (b) When the contract contains a termination for default clause, the 
contractor's failure to submit any report, perform services, or deliver 
work when required by the contract is considered a default in 
performance. The Contracting Officer shall immediately issue a formal 
ten-day cure notice pursuant to FAR 49.607. The notice shall include a 
statement to the effect that payments will be withheld if the default is 
not cured within the time frame specified in the notice or if the 
default is not determined to be excusable.
    (1) If the default is cured or is determined to be excusable, the 
Contracting Officer shall not initiate the withholding action.
    (2) If the default is not determined to be excusable or a response 
is not received within the allotted time, the Contracting Officer shall 
initiate withholding action on all contract payments and shall determine 
whether termination for default or other action would be in the best 
interest of the Government.
    (c) When the contract does not contain a termination for default 
clause, the contractor's failure to submit any required report, perform 
services, or deliver work when required by the contract shall be 
considered a failure to perform. The Contracting Officer shall 
immediately issue a written notice to the contractor specifying the 
failure and providing a ten-day period (or longer period if the 
Contracting Officer deems it necessary) in which the contractor shall 
cure the failure or provide reasons for an excusable delay. The notice 
shall include a statement to the effect that payments will be withheld 
if the default is not cured within the time specified in the notice or 
if the default is not determined to be excusable.
    (1) If the failure is cured or is determined to be excusable, the 
Contracting Officer shall not initiate the withholding action.
    (2) If the failure is not determined to be excusable or a response 
is not received within the allotted time, the Contracting Officer shall 
initiate withholding action on all contract payments and shall determine 
whether termination for convenience or other action would be in the best 
interest of the Government.
    (d) The Contracting Officer should consult FAR subpart 49.4 for 
further guidance before taking any of the actions described in this 
section.

[71 FR 76505, Dec. 20, 2006]



Sec. 342.7003-3  Withholding payments.

    (a) When making the determination that contract payments should be 
withheld in accordance with the Withholding of Contract Payments clause,

[[Page 72]]

the Contracting Officer shall immediately notify the servicing finance 
office in writing of the determination to withhold payments. The notice 
of suspension shall contain all information necessary for the finance 
office to identify the contract, i.e., contract number, task/delivery 
order number, contractor name and address, etc.
    (b) The Contracting Officer shall immediately notify the contractor 
in writing that payments have been suspended until the default or 
failure is cured.
    (c) When the contractor cures the default or failure, the 
Contracting Officer shall immediately notify, in writing, all recipients 
of the notice of suspension that the suspension is to be lifted and 
contract payments are to be resumed.
    (d) When exercising actions regarding the withholding of payment 
procedures, the Contracting Officer must be careful not to waive any of 
the Government's rights when corresponding with the contractor or when 
taking any other actions.

[71 FR 76505, Dec. 20, 2006]

         Subpart 342.71_Administrative Actions for Cost Overruns



Sec. 342.7100  Scope of subpart.

    This subpart sets forth the procedures to follow when a cost overrun 
is anticipated. A cost overrun occurs when the allowable actual cost of 
performing a cost-reimbursement type contract exceeds the total 
estimated cost specified in the contract.

[71 FR 76506, Dec. 20, 2006]



Sec. 342.7101  Contract administration.



Sec. 342.7101-1  General.

    Upon receipt of information that a contractor's accumulated cost and 
projected expenditures will exceed the limit of funds obligated by the 
contract, the contracting officer shall coordinate immediately with the 
appropriate program office to determine whether the contract should be 
modified or terminated. If the contracting officer receives information 
from a source other than the contractor that a cost overrun is 
anticipated, the contracting officer shall verify the information with 
the contractor, and remind the contractor of the notification 
requirements of the Limitation of Cost clause.



Sec. 342.7101-2  Procedures.

    (a) Upon notification that a cost overrun is anticipated, the 
Contracting Officer shall inform the contractor to submit a request for 
additional funds which shall include:
    (1) Name and address of contractor.
    (2) Contract number and expiration date.
    (3) Contract item(s) and amount(s) creating overrun.
    (4) The elements of cost which changed from the original estimate 
(i.e., labor, material, travel, overhead, etc.) to be furnished in the 
following format:
    (i) Original estimate,
    (ii) Costs incurred to date,
    (iii) Estimated cost to completion,
    (iv) Revised estimate, and
    (v) Amount of adjustment.
    (5) The factors responsible for the increase, i.e., error in 
estimate, changed conditions, etc.
    (6) The latest date by which funds must be available for commitment 
to avoid contract slippage, work stoppage, or other program impairment.
    (b) When the contractor submits a notice of an impending overrun, 
the contracting officer shall:
    (1) Immediately advise the appropriate program office and furnish a 
copy of the notice and any other data received;
    (2) Request audit or cost advisory services, and technical support, 
as necessary, for evaluation of information and data received; and
    (3) Maintain continuous follow-up with the program office to obtain 
a timely decision as to whether the work under the contract should 
continue and additional funds be provided, or the contract terminated. 
An appropriate written statement and funding authority, or a formal 
request for termination, must support the decision of the program 
office. After receiving the decision by the program office, the 
Contracting Officer shall promptly notify the contractor in writing of 
the following:

[[Page 73]]

    (i) The specified amount of additional funds allotted to the 
contract; or
    (ii) Work will be discontinued when the allotted funds are 
exhausted, and any work performed after that date is at the contractor's 
risk; or
    (iii) The Government is considering whether to allot additional 
funds to the contract and will notify the contractor as soon as 
possible, but that any work performed after the currently allotted funds 
are exhausted is at the contractor's risk. Timely, formal notification 
of the Government's intention is essential in order to preclude loss of 
contractual rights in the event of dispute, termination, or litigation.
    (c) If program requirements permit, contracting officers should 
refrain from issuing any contractual documents which will require new 
work or an extension of time, pending resolution of an overrun or 
additional fund request.

[66 FR 4255, Jan. 17, 2001, as amended at 71 FR 76506, Dec. 20, 2006]



Sec. 342.7102  Contract modifications.

    (a) Modifications to contracts containing the Limitation of Cost 
clause shall include either:
    (1) A provision increasing the estimated or ceiling amount referred 
to in the Limitation of Cost clause of the contract and stating that the 
clause will thereafter apply in respect to the increased amount; or
    (2) A provision stating that the estimated or ceiling amount 
referred to in the contract is not changed by the modification and that 
the Limitation of Cost clause will continue to apply with respect to the 
amount in effect prior to the modification.
    (b) A fixed-fee provided in a contract shall not be changed when 
funding a cost overrun. Changes in fixed-fee will be made only to 
reflect changes in the scope of work which justify an increase or 
decrease in fee.

[[Page 74]]

                     SUBCHAPTER H_CLAUSES AND FORMS

          PART 352_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

              Subpart 352.2_Texts of Provisions and Clauses

Sec.

Sec. 352.202-1 Definitions.

Sec. 352.215-1 Instructions to offerors--Competitive acquisition.

Sec. 352.215-70 Late proposals and revisions.

Sec. 352.216-72 Additional cost principles.

Sec. 352.223-70 Safety and health.

Sec. 352.224-70 Confidentiality of information.

Sec. 352.228-7 Insurance--Liability to third persons.

Sec. 352.232-9 Withholding of contract payments.

Sec. 352.232-75 Incremental funding.

Sec. 352.233-70 Litigation and claims.

Sec. 352.242-71 Final decisions on audit findings.

Sec. 352.249-14 Excusable delays.

Sec. 352.270-1 Accessibility of meetings, conferences, and seminars to 
          persons with disabilities.

Sec. 352.270-2 Indian preference.

Sec. 352.270-3 Indian preference program.

Sec. 352.270-4 Pricing of adjustments.

Sec. 352.270-5 Key personnel.

Sec. 352.270-6 Publications and publicity.

Sec. 352.270-7 Paperwork Reduction Act.

Sec. 352.270-8 Protection of human subjects.

Sec. 352.270-9 Care of laboratory animals.

Sec. 352.270-10 Anti-lobbying.

Sec. 352.270-11 Privacy Act.

Sec. 352.270-12 Pro-Children Act.

Sec. 352.270-13 Tobacco-free facilities.

Sec. 352.270-14 Restriction on use of human subjects.

Sec. 352.270-15 Salary rate limitation.

Sec. 352.270-16 Native American Graves Protection and Repatriation Act.

Sec. 352.270-17 Crime Control Act--Reporting of child abuse.

Sec. 352.270-18 Crime Control Act--Requirement for background checks.

Sec. 352.270-19 Electronic information and technology accessibility.

Sec. 352.333-7001 Choice of Law (Overseas).

    Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).

    Source: 66 FR 4255, Jan. 17, 2001, unless otherwise noted.

              Subpart 352.2_Texts of Provisions and Clauses



Sec. 352.202-1  Definitions.

    As prescribed in 302.201, use the FAR Definitions clause at 52.202-1 
as modified:

                         Definitions (JAN 2006)

    (a) In accordance with 52.202-1(a)(1), substitute the following as 
paragraph (a):
    ``(a) The term ``Secretary'' or ``Head of the Agency'' (also called 
``Agency Head'') means the Secretary, Deputy Secretary, or any Assistant 
Secretary, Administrator or Commissioner of the Department of Health and 
Human Services; and the term ``his/her duly authorized representative'' 
means any person, persons, or board authorized to act for the 
Secretary.''
    (b) In accordance with 52.202-1(a)(1), add the following paragraph 
(h):
    ``(h) The term ``Project Officer'' means the person who monitors the 
technical aspects of contract performance. The Project Officer is not 
authorized to issue any instructions or directions which cause any 
increase or decrease in the scope of work which would result in the 
increase or decrease in the price of this contract, or changes in the 
delivery schedule or period of performance of this contract. If 
applicable, the Project Officer is not authorized to receive or act upon 
any notification or revised cost estimate provided by the Contractor in 
accordance with the Limitation of Cost or Limitation of Funds clauses of 
this contract.''

[71 FR 76506, Dec. 20, 2006]



Sec. 352.215-1  Instructions to offerors--Competitive acquisition.

    Insert the following paragraph (e) in place of paragraph (e) of the 
provision at FAR 52.215-1:

    (e) Restriction on disclosure and use of data. (1) The proposal 
submitted in response to this request may contain data (trade secrets; 
business data, e.g., commercial information, financial information, and 
cost and pricing data; and technical data) which the offeror, including 
its prospective subcontractor(s), does not want used or disclosed for 
any purpose other than for evaluation of the proposal. The use and 
disclosure of any data may be so restricted; provided, that the 
Government determines that the data is not required to be disclosed 
under the Freedom of Information Act, 5 U.S.C. 552, as amended, and the 
offeror marks the cover sheet of the proposal with the following 
statements, specifying the particular portions of the proposal which are 
to be restricted: ``Unless disclosure is required by the Freedom of 
Information Act, 5 U.S.C. 552, as amended, (the Act) as determined by 
Freedom of Information (FOI) officials of the Department of Health and 
Human Services, data contained in the portions of this proposal which 
have been specifically identified by page number,

[[Page 75]]

paragraph, etc. by the offeror as containing restricted information 
shall not be used or disclosed except for evaluation purposes.
    The offeror acknowledges that the Department may not be able to 
withhold a record (data, document, etc.) nor deny access to a record 
requested pursuant to the Act and that the Department's FOI officials 
must make that determination. The offeror hereby agrees that the 
Government is not liable for disclosure if the Department has determined 
that disclosure is required by the Act.
    If a contract is awarded to the offeror as a result of, or in 
connection with, the submission of this proposal, the Government shall 
have the right to use or disclose the data to the extent provided in the 
contract. Proposals not resulting in a contract remain subject to the 
Act.
    The offeror also agrees that the Government is not liable for 
disclosure or use of unmarked data and may use or disclose the data for 
any purpose, including the release of the information pursuant to 
requests under the Act. The data subject to this restriction are 
contained in pages (insert page numbers, paragraph designations, etc. or 
other identification).''
    (2) In addition, the offeror must mark each page of data it wishes 
to restrict with the following statement:
    ``Use or disclosure of data contained on this page is subject to the 
restriction on the cover sheet of this proposal or quotation.''
    (3) Offerors are cautioned that proposals submitted with restrictive 
statements or statements differing in substance from those cited above 
may not be considered for award. The Government reserves the right to 
reject any proposal submitted with nonconforming statement(s).

[71 FR 76506, Dec. 20, 2006]



Sec. 352.215-70  Late proposals and revisions.

    As prescribed in 315.208, the following provision may be included in 
the solicitation:

                 Late Proposals and Revisions (JAN 2006)

    Notwithstanding the procedures contained in FAR 52.215-1(c)(3) of 
the provision of this solicitation entitled Instructions to Offerors--
Competitive Acquisition, a proposal received after the date specified 
for receipt may be considered if it appears to offer the best value to 
the Government and it was received before proposals were distributed for 
evaluation, or within five calendar days after the exact time specified 
for receipt, whichever is earlier.

                           (End of provision)

[71 FR 76506, Dec. 20, 2006]



Sec. 352.216-72  Additional cost principles.

    As prescribed in 316.307(j), insert the following clause in all 
solicitations and resultant cost-reimbursement contracts:

                  Additional Cost Principles (JAN 2006)

    (a) Bid and proposal costs. (1) Bid and proposal costs are the 
immediate costs of preparing bids, proposals, and applications for 
potential Federal and non-Federal contracts, grants, and agreements, 
including the development of scientific, cost, and other data needed to 
support the bids, proposals, and applications.
    (2) Bid and proposal costs of the current accounting period are 
allowable as indirect costs.
    (3) Bid and proposal costs of past accounting periods are 
unallowable in the current period. However, if the organization's 
established practice is to treat these costs by some other method, they 
may be accepted if they are found to be reasonable and equitable.
    (4) Bid and proposal costs do not include independent research and 
development costs covered by the following paragraph, or preaward costs 
covered by paragraph 36 of Attachment B to OMB Circular A-122.
    (b) Independent research and development costs. (1) Independent 
research and development is research and development conducted by an 
organization which is not sponsored by Federal or non-Federal contracts, 
grants, or other agreements.
    (2) Independent research and development shall be allocated its 
proportionate share of indirect costs on the same basis as the 
allocation of indirect costs to sponsored research and development.
    (3) The cost of independent research and development, including its 
proportionate share of indirect costs, are unallowable.

                             (End of clause)

[66 FR 4255, Jan. 17, 2001, as amended at 71 FR 76506, Dec. 20, 2006]



Sec. 352.223-70  Safety and health.

    The following clause shall be used as prescribed in 323.7002:

                      Safety and Health (JAN 2006)

    (a) To help ensure the protection of the life and health of all 
persons, and to help prevent damage to property, the Contractor shall 
comply with all Federal, State and local laws and regulations applicable 
to the work being performed under this contract. These laws are 
implemented and/or enforced by the Environmental Protection Agency, 
Occupational Safety and Health Administration and

[[Page 76]]

other agencies at the Federal, State and local levels (Federal, State 
and local regulatory/enforcement agencies).
    (1) In addition, the following regulations must be followed when 
developing and implementing health and safety operating procedures and 
practices for both personnel and facilities involving the use or 
handling of hazardous materials and the conduct of research, 
development, or test projects:
    (i) 29 CFR 1910.1030, Bloodborne pathogens; 29 CFR 1910.1450, 
Occupational exposure to hazardous chemicals in laboratories; and other 
applicable occupational health and safety standards issued by the 
Occupational Health and Safety Administration (OSHA) and included in 29 
CFR Part 1910. These regulations are available at http://www.osha.gov/
comp-links.html.
    (ii) Nuclear Regulatory Commission Standards and Regulations, 
pursuant to the Energy Reorganization Act of 1974 (42 U.S.C. 5801 et 
seq.). Copies may be obtained from the U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001.
    (2) The following guidelines are recommended for use in developing 
and implementing health and safety operating procedures and practices 
for both personnel and facilities:
    (i) Biosafety in Microbiological and Biomedical Laboratories, CDC 
and NIH, HHS. This publication is available at http://bmbl.od.nih.gov/
index.htm.
    (ii) Prudent Practices for Safety in Laboratories (1995), National 
Research Council, National Academy Press, 500 Fifth Street, NW., Lockbox 
285, Washington, DC 20055 (ISBN 0-309-05229-7). This publication can be 
obtained by telephoning 800-624-8373. It also is available at http://
www.nap.edu/catalog/4911.html.
    (b) Further, the Contractor shall take or cause to be taken 
additional safety measures as the Contracting Officer, in conjunction 
with the project or other appropriate officers, determines to be 
reasonably necessary. If compliance with these additional safety 
measures results in an increase or decrease in the cost or time required 
for performance of any part of work under this contract, an equitable 
adjustment will be made in accordance with the applicable ``Changes'' 
clause set forth in this contract.
    (c) The Contractor shall maintain an accurate record of, and 
promptly report to the Contracting Officer, all accidents or incidents 
resulting in the exposure of persons to toxic substances, hazardous 
materials or hazardous operations; the injury or death of any person; 
and/or damage to property incidental to work performed under the 
contract and all violations for which the Contractor has been cited by 
any Federal, State or local regulatory/enforcement agency. The report 
shall include a copy of the notice of violation and the findings of any 
inquiry or inspection, and an analysis addressing the impact these 
violations may have on the work remaining to be performed. The report 
shall also state the required action(s), if any, to be taken to correct 
any violation(s) noted by the Federal, State or local regulatory/
enforcement agency and the time frame allowed by the agency to 
accomplish the necessary corrective action.
    (d) If the Contractor fails or refuses to comply with the Federal, 
State or local regulatory/enforcement agency's directive(s) regarding 
any violation(s) and prescribed corrective action(s), the Contracting 
Officer may issue an order stopping all or part of the work until 
satisfactory corrective action (as approved by the Federal, State or 
local regulatory/enforcement agencies) has been taken and documented to 
the Contracting Officer. No part of the time lost due to any stop work 
order shall be subject to a claim for extension of time or costs or 
damages by the Contractor.
    (e) The Contractor shall insert the substance of this clause in each 
subcontract involving toxic substances, hazardous materials, or 
hazardous operations. Compliance with the provisions of this clause by 
subcontractors will be the responsibility of the Contractor.

                             (End of clause)

[71 FR 76507, Dec. 20, 2006]



Sec. 352.224-70  Confidentiality of information.

    The following clause covers the policy set forth in subpart 324.70 
and is used in accordance with the instructions set forth in 324.7004.

                Confidentiality of Information (JAN 2006)

    (a) Confidential information, as used in this clause, means 
information or data of a personal nature about an individual, or 
proprietary information or data submitted by or pertaining to an 
institution or organization.
    (b) The Contracting Officer and the Contractor may, by mutual 
consent, identify elsewhere in this contract specific information and/or 
categories of information which the Government will furnish to the 
Contractor or that the Contractor is expected to generate which is 
confidential. Similarly, the Contracting Officer and the Contractor may, 
by mutual consent, identify such confidential information from time to 
time during the performance of the contract. Failure to agree will be 
settled pursuant to the ``Disputes'' clause.
    (c) If it is established elsewhere in this contract that information 
to be utilized under this contract, or a portion thereof, is subject to 
the Privacy Act, the Contractor

[[Page 77]]

will follow the rules and procedures of disclosure set forth in the 
Privacy Act of 1974, 5 U.S.C. 552a, and implementing regulations and 
policies, with respect to systems of records determined to be subject to 
the Privacy Act.
    (d) Confidential information, as defined in paragraph (a) of this 
clause, shall not be disclosed without the prior written consent of the 
individual, institution, or organization.
    (e) Whenever the Contractor is uncertain with regard to the proper 
handling of material under the contract, or if the material in question 
is subject to the Privacy Act or is confidential information subject to 
the provisions of this clause, the Contractor should obtain a written 
determination from the Contracting Officer prior to any release, 
disclosure, dissemination, or publication.
    (f) Contracting Officer determinations will reflect the result of 
internal coordination with appropriate program and legal officials.
    (g) The provisions of paragraph (d) of this clause shall not apply 
to conflicting or overlapping provisions in other Federal, State, or 
local laws.

                             (End of clause)

[71 FR 76507, Dec. 20, 2006]



Sec. 352.228-7  Insurance--Liability to third persons.

    As prescribed in 328.311-2, contracting officers shall include the 
following clause in all cost-reimbursement contracts, in lieu of the 
clause at FAR 52.228-7:

            Insurance--Liability to Third Persons (DEC 1991)

    (a)(1) Except as provided in paragraph (a)(2) immediately following, 
or in paragraph (h) of this clause (if the clause has a paragraph (h)), 
the Contractor shall provide and maintain workers' compensation, 
employer's liability, comprehensive general liability (bodily injury), 
comprehensive automobile liability (bodily injury and property damage) 
insurance, and such other insurance as the Contracting Officer may 
require under this contract.
    (2) The Contractor may, with the approval of the Contracting 
Officer, maintain a self-insurance program; provided that, with respect 
to workers' compensation, the Contractor is qualified pursuant to 
statutory authority.
    (3) All insurance required by this paragraph shall be in form and 
amount and for those periods as the Contracting Officer may require or 
approve and with insurers approved by the Contracting Officer.
    (b) The Contractor agrees to submit for the Contracting Officer's 
approval, to the extent and in the manner required by the Contracting 
Officer, any other insurance that is maintained by the Contractor in 
connection with performance of this contract and for which the 
Contractor seeks reimbursement.
    (c) Except as provided in paragraph (h) of this clause (if the 
clause has a paragraph (h)), the Contractor shall be reimbursed:
    (1) For that portion of the reasonable cost of insurance allocable 
to this contract, and required or approved under this clause; and
    (2) For certain liabilities (and expenses incidental to such 
liabilities) to third persons not compensated by insurance or otherwise 
within the funds available under the Limitation of Cost or the 
Limitation of Funds clause of this contract. These liabilities must 
arise out of the performance of this contract, whether or not caused by 
the negligence of the Contractor or the Contractor's agents, servants, 
or employees, and must be represented by final judgments or settlements 
approved in writing by the Government. These liabilities are for:
    (i) Loss of or damage to property (other than property owned, 
occupied, or used by the Contractor, rented to the Contractor, or in the 
care, custody, or control of the Contractor); or
    (ii) Death or bodily injury.
    (d) The Government's liability under paragraph (c) of this clause is 
limited to the amounts reflected in final judgments, or settlements 
approved in writing by the Government, but in no event to exceed the 
funds available under the Limitation of Cost or Limitation of Funds 
clause of this contract. Nothing in this contract shall be construed as 
implying that, at a later date, the Government will request, or the 
Congress will appropriate, funds sufficient to meet any deficiencies.
    (e) The Contractor shall not be reimbursed for liabilities (and 
expenses incidental to such liabilities):
    (1) For which the Contractor is otherwise responsible under the 
express terms of any clause specified in the Schedule or elsewhere in 
the contract:
    (2) For which the Contractor has failed to insure or to maintain 
insurance as required by the Contracting Officer; or
    (3) That result from willful misconduct or lack of good faith on the 
part of the Contractor's directors, officers, managers, superintendents, 
or other representatives who have supervision or direction of:
    (i) All or substantially all of the Contractor's business;
    (ii) All or substantially all of the Contractor's operations at any 
one plant or separate location in which this contract is being 
performed; or
    (iii) A separate and complete major industrial operation in 
connection with the performance of this contract.

[[Page 78]]

    (f) The provisions of paragraph (e) of this clause shall not 
restrict the right of the Contractor to be reimbursed for the cost of 
insurance maintained by the Contractor in connection with the 
performance of this contract, other than insurance required in 
accordance with this clause; provided, that such cost is allowable under 
the Allowable Cost and Payment clause of this contract.
    (g) If any suit or action is filed or any claim is made against the 
Contractor, the cost and expense of which may be reimbursable to the 
Contractor under this contract, and the risk of which is then uninsured 
or is insured for less than the amount claimed, the Contractor shall:
    (1) Immediately notify the Contracting Officer and promptly furnish 
copies of all pertinent papers received;
    (2) Authorize Government representatives to collaborate with counsel 
for the insurance carrier in settling or defending the claim when the 
amount of the liability claimed exceeds the amount of coverage; and
    (3) Authorize Government representatives to settle or defend the 
claim and to represent the Contractor in or to take charge of any 
litigation, if required by the Government, when the liability is not 
insured or covered by the bond. The Contractor may, at its own expense, 
be associated with the Government representatives in any such claim or 
litigation.

                             (End of clause)

    Alternate I (APR 1984). If the successful offeror represents in the 
offer that the offeror is partially immune from tort liability as a 
State agency, add the following paragraph (h) to the basic clause:

    (h) Notwithstanding paragraphs (a) and (c) of this clause--
    (1) The Government does not assume any liability to third persons, 
nor will the Government reimburse the Contractor for its liability to 
third persons, with respect to loss due to death, bodily injury, or 
damage to property resulting in any way from the performance of this 
contract or any subcontract under this contract; and
    (2) The Contractor need not provide or maintain insurance coverage 
as required by paragraph (a) of this clause; provided, that the 
Contractor may obtain any insurance coverage deemed necessary, subject 
to approval by the Contracting Officer as to form, amount, and duration. 
The Contractor shall be reimbursed for the cost of such insurance and, 
to the extent provided in paragraph (c) of this clause, to liabilities 
to third persons for which the Contractor has obtained insurance 
coverage as provided in this paragraph, but for which such coverage is 
insufficient in amount.

                             (End of clause)

    Alternate II (APR 1984). If the successful offeror represents in the 
offer that the offeror is totally immune from tort liability as a State 
agency, substitute the following paragraphs (a) and (b) for paragraphs 
(a) and (b) of the basic clause:

    (a) The Government does not assume any liability to third persons, 
nor will the Government reimburse the Contractor for its liability to 
third persons, with respect to loss due to death, bodily injury, or 
damage to property resulting in any way from the performance of this 
contract or any subcontract under this contract.
    (b) If any suit or action is filed, or if any claim is made against 
the Contractor, the cost and expense of which may be reimbursable to the 
Contractor under this contract, the Contractor shall immediately notify 
the Contracting Officer and promptly furnish copies of all pertinent 
papers received by the Contractor. The Contractor shall, if required by 
the Government, authorize Government representatives to settle or defend 
the claim and to represent the Contractor in or take charge of any 
litigation. The Contractor may, at its own expense, be associated with 
the Government representatives in any such claims or litigation.

                             (End of clause)

[66 FR 4252, Jan. 17, 2001, as amended at 71 FR 76507, Dec. 20, 2006]



Sec. 352.232-9  Withholding of contract payments.

    Insert the following clause in all solicitations and contracts other 
than awards made using simplified acquisition procedures:

               Withholding of Contract Payments (JAN 2006)

    Notwithstanding any other payment provisions of this contract, 
failure of the Contractor to submit required reports when due or failure 
to perform or deliver required work, supplies, or services, may result 
in the withholding of payments under this contract unless such failure 
arises out of causes beyond the control, and without the fault or 
negligence of the Contractor as defined by the clause entitled 
``Excusable Delays'' or ``Default'', as applicable. The Government shall 
immediately notify the Contractor of its intention to withhold payment 
of any invoice or voucher submitted.

[[Page 79]]

                             (End of clause)

[71 FR 76507, Dec. 20, 2006]



Sec. 352.232-75  Incremental funding.

    The following provision shall be included in all requests for 
proposals whenever the use of incremental funding is contemplated:

                     Incremental Funding (JAN 2006)

    (a) It is the Government's intention to negotiate and award a 
contract using the incremental funding concepts described in the clause 
entitled Limitation of Funds, as specified in FAR 52.232-22. Under the 
clause, which will be included in the resultant contract, initial funds 
will be obligated under the contract to cover the first year of 
performance. The Government intends to allot additional funds up to and 
including the full estimated cost of the contract for the remaining 
years of performance by contract modification. However, the Government 
is not obligated to reimburse the Contractor for costs incurred in 
excess of the periodic allotments nor is the Contractor obligated to 
perform in excess of the amount allotted.
    (b) The Limitation of Funds clause to be included in the resultant 
contract, as specified in FAR 52.232-22, shall supersede the Limitation 
of Cost clause found in the Section I, Contract Clauses.

                           (End of provision)

[71 FR 76508, Dec. 20, 2006]



Sec. 352.233-70  Litigation and claims.

    Insert the following clause in all solicitations and resultant cost-
reimbursement contracts:

                    Litigation and Claims (JAN 2006)

    The Contractor shall provide written notification immediately to the 
Contracting Officer of any action, including any proceeding before an 
administrative agency, filed against the Contractor arising out of the 
performance of this contract, including, but not limited to the 
performance of any subcontract hereunder; and any claim against the 
Contractor the cost and expense of which is allowable under the clause 
entitled ``Allowable Cost and Payment.'' Except as otherwise directed by 
the Contracting Officer, the Contractor shall furnish immediately to the 
Contracting Officer copies of all pertinent papers received by the 
Contractor with respect to such action or claim. To the extent not in 
conflict with any applicable policy of insurance, the Contractor may, 
with the Contracting Officer's approval, settle any such action or 
claim. If required by the Contracting Officer, the Contractor shall 
effect an assignment and subrogation in favor of the Government of all 
the Contractor's rights and claims (except those against the Government) 
arising out of any such action or claim against the Contractor; and 
authorize representatives of the Government to settle or defend any such 
action or claim and to represent the Contractor in, or to take charge 
of, any action. If the settlement or defense of an action or claim is 
undertaken by the Government, the Contractor shall furnish all 
reasonable assistance in effecting a settlement or asserting a defense. 
Where an action against the Contractor is not covered by a policy of 
insurance, the Contractor shall, with the approval of the Contracting 
Officer, proceed with the defense of the action in good faith. The 
Government shall not be liable for the expense of defending any action 
or for any costs resulting from the loss thereof to the extent that the 
Contractor would have been compensated by insurance which was required 
by law or regulation or by written direction of the Contracting Officer, 
but which the Contractor failed to secure through its own fault or 
negligence. In any event, unless otherwise expressly provided in this 
contract, the Contractor shall not be reimbursed or indemnified by the 
Government for any liability loss, cost or expense, which the Contractor 
may incur or be subject to by reason of any loss, injury or damage, to 
the person or to real or personal property of any third parties as may 
accrue during, or arise from, the performance of this contract.

                             (End of clause)

[71 FR 76508, Dec. 20, 2006]



Sec. 352.242-71  Final decisions on audit findings.

    Insert the following clause in all solicitations and resultant cost-
reimbursement contracts.

              Final Decisions on Audit Findings (APR 1984)

    For the purpose of issuing final decisions under the Disputes clause 
of this contract concerning monetary audit findings, the Contracting 
Officer shall be that person with ultimate responsibility for making 
that decision in accordance with Chapter 1-105, Resolution of Audit 
Findings, of the Department's Grants Administration Manual.

                             (End of clause)



Sec. 352.249-14  Excusable delays.

    Insert the following clause in all solicitations and resultant 
contracts,

[[Page 80]]

other than awards made using simplified acquisition procedures:

                       Excusable Delays (JAN 2006)

    (a) Except with respect to failures of subcontractors, the 
Contractor shall not be considered to have failed in performance of this 
contract if such failure arises out of causes beyond the control and 
without the fault or negligence of the Contractor.
    (b) Such causes may include, but are not restricted to, acts of God 
or of the public enemy, acts of the Government in either its sovereign 
or contractual capacity, fires, floods, epidemics, quarantine 
restrictions, strikes, freight embargoes, and unusually severe weather, 
but in every case the failure to perform must be beyond the control and 
without the fault or negligence of the Contractor. If the failure to 
perform is caused by the failure of a subcontractor to perform, and if 
such failure arises out of causes beyond the control of both the 
Contractor and subcontractor, and without the fault or negligence of 
either of them, the Contractor shall not be deemed to have failed in 
performance of the contract, unless: (1) The supplies or services to be 
furnished by the subcontractor were obtainable from other sources, (2) 
the Contracting Officer ordered the Contractor in writing to procure 
such supplies or services from such other sources, and (3) the 
Contractor failed to comply with such order. Upon request of the 
Contractor, the Contracting Officer shall ascertain the facts and extent 
of such failure and if the Contracting Officer determines that any 
failure to perform was caused by circumstances beyond the control and 
without the fault or negligence of the Contractor, the delivery schedule 
shall be revised accordingly, subject to the rights of the Government 
under the termination clause contained in this contract. (As used in 
this clause, the terms ``subcontractor'' and ``subcontractors'' mean 
subcontractor(s) at any tier.)

                             (End of clause)

[71 FR 76508, Dec. 20, 2006]



Sec. 352.270-1  Accessibility of meetings, conferences, and seminars to 

persons with disabilities.

    Use the following clause in accordance with 370.102:

  Accessibility of Meetings, Conferences, and Seminars to Persons with 
                         Disabilities (JAN 2001)

    The Contractor agrees as follows:
    (a) Planning. The Contractor will develop a plan to assure that any 
meeting, conference, or seminar held pursuant to this contract will meet 
or exceed the minimum accessibility standards set forth in 28 CFR 
36.101-36.500 and Appendix A: ADA Accessibility Guidelines (ADAAG). The 
plan shall be submitted to the project officer for approval prior to 
initiating action. ( A consolidated or master plan for contracts 
requiring numerous meetings, conferences, or seminars may be submitted 
in lieu of separate plans.)
    (b) Facilities. Any facility to be utilized for meetings, 
conferences, or seminars in performance of this contract shall be in 
compliance with 28 CFR 36.101-36.500 and Appendix A. The Contractor 
shall determine, by an on-site inspection, that the facility meets these 
requirements.
    (1) Parking. Parking shall be in compliance with 28 CFR 36.101-
36.500 and Appendix A.
    (2) Entrances. Entrances shall be in compliance with 28 CFR 36.101-
36.500 and Appendix A.
    (3) Meeting Rooms. Meeting rooms, including seating arrangements, 
shall be in compliance with 28 CFR 36.101-36.500 and Appendix A. In 
addition, stages, speaker platforms, etc. which are to be used by 
persons in wheelchairs must be accessible by ramps or lifts. When used, 
the ramp may not necessarily be independently negotiable if space does 
not permit. However, any slope over 1:12 must be approved by the Project 
Officer and the Contractor must provide assistance to negotiate access 
to the stage or platform.
    (4) Restrooms. Restrooms shall be in compliance with 28 CFR 36.101-
36.500 and Appendix A.
    (5) Eating Facilities. Eating facilities in the meeting facility 
must also comply with 28 CFR 36.101-36.500 and Appendix A.
    (6) Overnight Facilities. If overnight accommodations are required, 
the facility providing the overnight accommodations shall also comply 
with 28 CFR 36.101-36.500 and Appendix A.
    (7) Water Fountains. Water fountains shall comply with 28 CFR 
36.101-36.500 and Appendix A.
    (8) Telephones. Public telephones shall comply with 28 CFR 36.101-
36.500 and Appendix A.
    (c) Provisions of Services for Attendees with Sensory Impairments. 
(1) The Contractor, in planning the meeting, conference, or seminar, 
shall include in all announcements and other materials pertaining to the 
meeting, conference, or seminar a notice indicating that services will 
be made available to persons with sensory impairments attending the 
meeting, if requested within five (5) days of the date of the meeting, 
conference, or seminar. The announcement(s) and other material(s) shall 
indicate that persons with sensory impairments may contact a specific 
person(s), at a specific address and phone number(s), to make their 
service requirements known. The phone number(s) shall include a 
telecommunication device for the deaf (TDD).

[[Page 81]]

    (2) The Contractor shall provide, at no additional cost to the 
individual, those services required by persons with sensory impairments 
to insure their complete participation in the meeting, conference, or 
seminar.
    (3) At a minimum, when requested in advance, the Contractor shall 
provide the following services:
    (i) For persons with hearing impairments, qualified interpreters. 
Also, the meeting rooms will be adequately illuminated so signing by 
interpreters can be easily seen.
    (ii) For persons with vision impairments, readers and/or cassette 
materials, as necessary, to enable full participation. Also, meeting 
rooms will be adequately illuminated.
    (iii) Agenda and other conference material(s) shall be translated 
into a usable form for persons with sensory impairments. Readers, 
Braille translations, large print text, and/or tape recordings are all 
acceptable. These materials shall be available to individuals with 
sensory impairments upon their arrival.

                             (End of clause)

[66 FR 4255, Jan. 17, 2001, as amended at 71 FR 76508, Dec. 20, 2006]



Sec. 352.270-2  Indian preference.

    Use the following clause as prescribed in 370.202(a):

                      Indian Preference (APR 1984)

    (a) The Contractor agrees to give preference in employment 
opportunities under this contract to Indians who can perform required 
work, regardless of age (subject to existing laws and regulations), sex, 
religion, or tribal affiliation. To the extent feasible and consistent 
with the efficient performance of this contract, the Contractor further 
agrees to give preference in employment and training opportunities under 
this contract to Indians who are not fully qualified to perform 
regardless of age (subject to existing laws and regulations), sex, 
religion, or tribal affiliation. The Contractor also agrees to give 
preference to Indian organizations and Indian-owned economic enterprises 
in the awarding of any subcontracts to the extent feasible and 
consistent with the efficient performance of this contract. The 
Contractor shall maintain statistical records as are necessary to 
indicate compliance with this paragraph.
    (b) In connection with the Indian employment preference requirements 
of this clause, the Contractor shall provide opportunities for training 
incident to such employment. Such training shall include on-the-job, 
classroom or apprenticeship training which is designed to increase the 
vocational effectiveness of an Indian employee.
    (c) If the Contractor is unable to fill its employment and training 
opportunities after giving full consideration to Indians as required by 
this clause, those needs may be satisfied by selection of persons other 
than Indians in accordance with the clause of this contract entitled 
``Equal Opportunity.''
    (d) If no Indian organizations or Indian-owned economic enterprises 
are available under reasonable terms and conditions, including price, 
for awarding of subcontracts in connection with the work performed under 
this contract, the Contractor agrees to comply with the provisions of 
this contract involving utilization of small business concerns, small 
disadvantaged business concerns, and women-owned small business 
concerns.
    (e) As used in this clause:
    (1) ``Indian'' means a person who is a member of an Indian Tribe. If 
the Contractor has reason to doubt that a person seeking employment 
preference is an Indian, the Contractor shall grant the preference but 
shall require the individual to provide evidence within thirty (30) days 
from the Tribe concerned that the person is a member of the Tribe.
    (2) ``Indian Tribe'' means an Indian Tribe, pueblo, band, nation, or 
other organized group or community, including Alaska Native village or 
regional or village corporation as defined in or established pursuant to 
the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601) 
which is recognized as eligible for the special programs and services 
provided by the United States to Indians because of their status as 
Indians.
    (3) ``Indian organization'' means the governing body of any Indian 
Tribe or entity established or recognized by such governing body in 
accordance with the Indian Financing Act of 1974 (88 Stat. 77; 25 U.S.C. 
1451); and
    (4) ``Indian-owned economic enterprise'' means any Indian-owned 
commercial, industrial, or business activity established or organized 
for the purpose of profit, provided that such Indian ownership shall 
constitute not less than 51 percent of the enterprise, and that 
ownership shall encompass active operation and control of the 
enterprise.
    (f) The Contractor agrees to include the provisions of this clause, 
including this paragraph (f) of this clause, in each subcontract awarded 
at any tier under this contract.
    (g) In the event of noncompliance with this clause, the Contracting 
Officer may terminate the contract in whole or in part or may impose any 
other sanctions authorized by law or by other provisions of the 
contract.

[[Page 82]]

                             (End of clause)

[66 FR 4255, Jan. 17, 2001, as amended at 71 FR 76508, Dec. 20, 2006]



Sec. 352.270-3  Indian preference program.

    Use the following clause as prescribed in 370.202(b):

                  Indian Preference Program (JAN 2006)

    (a) In addition to the requirements of the clause of this contract 
entitled ``Indian Preference,'' the Contractor agrees to establish and 
conduct an Indian preference program which will expand opportunities for 
Indians to receive preference for employment and training in connection 
with the work to be performed under this contract, and which will expand 
the opportunities for Indian organizations and Indian-owned economic 
enterprises to receive a preference in the awarding of subcontracts. In 
this connection, the Contractor shall:
    (1) Designate a liaison officer who will maintain liaison with the 
Government and the Tribe(s) on Indian preference matters; supervise 
compliance with the provisions of this clause; and administer the 
Contractor's Indian preference program.
    (2) Advise its recruitment sources in writing and include a 
statement in all advertisements for employment that Indian applicants 
will be given preference in employment and training incident to such 
employment.
    (3) Not more than twenty (20) calendar days after award of the 
contract, post a written notice in the Tribal office of any reservations 
on which or near where the work under this contract is to be performed 
that sets forth the Contractor's employment needs and related training 
opportunities. The notice shall include the approximate numbers and 
types of employees needed; the approximate dates of employment; the 
experience or special skills required for employment, if any; training 
opportunities available; and other pertinent information necessary to 
advise prospective employees of any other employment requirements. The 
Contractor shall also request the Tribe(s) on or near whose 
reservation(s) the work is to be performed to provide assistance to the 
Contractor in filling its employment needs and training opportunities. 
The Contracting Officer will advise the Contractor of the name, 
location, and phone number of the Tribal officials to contact in regard 
to the posting of notices and requests for Tribal assistance.
    (4) Establish and conduct a subcontracting program which gives 
preference to Indian organizations and Indian-owned economic enterprises 
as subcontractors and suppliers under this contract. The Contractor 
shall give public notice of existing subcontracting opportunities and, 
to the extent feasible and consistent with the efficient performance of 
this contract, shall solicit bids or proposals only from Indian 
organizations or Indian-owned economic enterprises. The Contractor shall 
request assistance and information on Indian firms qualified as 
suppliers or subcontractors from the Tribe(s) on or near whose 
reservation(s) the work under the contract is to be performed. The 
Contracting Officer will advise the Contractor of the name, location, 
and phone number of the Tribal officials to be contacted in regard to 
the request for assistance and information. Public notices and 
solicitations for existing subcontracting opportunities shall provide an 
equitable opportunity for Indian firms to submit bids or proposals by 
including: (i) A clear description of the supplies or services required, 
including quantities, specifications, and delivery schedules which 
facilitate the participation of Indian firms; (ii) A statement 
indicating that preference will be given to Indian organizations and 
Indian-owned economic enterprises in accordance with section 7(b) of 
Public Law 93-638 (88 Stat. 2205; 25 U.S.C. 450e(b)); (iii) Definitions 
for the terms ``Indian organization'' and ``Indian-owned economic 
enterprise'' as prescribed under the ``Indian Preference'' clause of 
this contract; (iv) A statement to be completed by the bidder or offeror 
that it is an Indian organization or Indian-owned economic enterprise; 
and (v) A closing date for receipt of bids or proposals which provides 
sufficient time for preparation and submission of a bid or proposal. If 
after soliciting bids or proposals from Indian organizations and Indian-
owned economic enterprises, no responsive bid or acceptable proposal is 
received, the Contractor shall comply with the requirements of paragraph 
(d) of the ``Indian Preference'' clause of this contract. If one or more 
responsible bids or acceptable proposals are received, award shall be 
made to the low responsible bidder or acceptable offeror if the price is 
determined to be reasonable. If the low responsive bid or acceptable 
proposal is determined to be unreasonable as to price, the Contractor 
shall attempt to negotiate a reasonable price and award a subcontract. 
If a reasonable price cannot be agreed upon, the Contractor shall comply 
with the requirements of paragraph (d) of the ``Indian Preference'' 
clause of this contract.
    (5) Maintain written records under this contract which indicate: (i) 
The numbers of Indians seeking employment for each employment position 
available under this contract; (ii) The number and types of positions 
filled by Indians and non-Indians; (iii) The total number of Indians 
employed under this contract; (iv) For those positions where there are 
both Indian and non-Indian applicants, and a non-Indian is selected for 
employment, the reason(s) why the Indian applicant was not selected; (v) 
Actions taken to give preference to Indian organizations

[[Page 83]]

and Indian-owned economic enterprises for subcontracting opportunities 
which exist under this contract; (vi) Reasons why preference was not 
given to Indian firms as subcontractors or suppliers for each 
requirement where it was determined by the Contractor that such 
preference would not be consistent with the efficient performance of the 
contract; and (vii) The number of Indian organizations and Indian-owned 
economic enterprises contacted, and the number receiving subcontract 
awards under this contract.
    (6) Submit to the Contracting Officer for approval a quarterly 
report which summarizes the Contractor's Indian preference program and 
indicates the number and types of available positions filled by Indians 
and non-Indians, and the dollar amounts of all subcontracts awarded to 
Indian organizations and Indian-owned economic enterprises, and to all 
other firms.
    (7) Maintain records pursuant to this clause and keep them available 
for review by the Government for one year after final payment under this 
contract, or for such longer period as may be required by any other 
clause of this contract or by applicable law or regulation.
    (b) For purposes of this clause, the following definitions of terms 
shall apply:
    (1) The terms ``Indian,'' ``Indian Tribe,'' ``Indian Organization,'' 
and ``Indian-owned economic enterprise'' are defined in the clause of 
this contract entitled ``Indian Preference.''
    (2) ``Indian reservation'' includes Indian reservations, public 
domain Indian Allotments, former Indian reservations in Oklahoma, and 
land held by incorporated Native groups, regional corporations, and 
village corporations under the provisions of the Alaska Native Claims 
Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et seq.)
    (3) ``On or near an Indian Reservation'' means on a reservation or 
reservations or within that area surrounding an Indian reservation(s) 
where a person seeking employment could reasonably be expected to 
commute to and from in the course of a work day.
    (c) Nothing in the requirements of this clause shall be interpreted 
to preclude Indian Tribes from independently developing and enforcing 
their own Indian preference requirements. Such requirements must not 
conflict with any Federal statutory or regulatory requirement dealing 
with the award and administration of contracts.
    (d) The Contractor agrees to include the provisions of this clause, 
including this paragraph (d), in each subcontract awarded at any tier 
under this contract and to notify the Contracting Officer of such 
subcontracts.
    (e) In the event of noncompliance with this clause, the Contracting 
Officer may terminate the contract in whole or in part or may impose any 
other sanctions authorized by law or by other provisions of the 
contract.

                             (End of clause)

[71 FR 76508, Dec. 20, 2006]



Sec. 352.270-4  Pricing of adjustments.

    Insert the following clause in all solicitations and resultant 
fixed-priced contracts other than awards made using simplified 
acquisition procedures.

                    Pricing of Adjustments (JAN 2001)

    When costs are a factor in determination of a contract price 
adjustment pursuant to the ``Changes'' clause or any provision of this 
contract, such costs shall be determined in accordance with the 
applicable cost principles and procedures set forth below:

------------------------------------------------------------------------
                Principles                     Types of organizations
------------------------------------------------------------------------
(a) Subpart 31.2 of the Federal             Commercial.
 Acquisition Regulation.
(b) Subpart 31.3 of the Federal             Educational.
 Acquisition Regulation.
(c) Subpart 31.6 of the Federal             State, local, and federally
 Acquisition Regulation.                     recognized Indian tribal
                                             governments.
(d) 45 CFR Part 74 Appendix E.............  Hospitals (performing
                                             research and development
                                             contracts only.
(e) Subpart 31.7 of the Federal             Other nonprofit
 Acquisition Regulation.                     institutions.
------------------------------------------------------------------------

                             (End of clause)

[66 FR 4255, Jan. 17, 2001, as amended at 71 FR 76509, Dec. 20, 2006]



Sec. 352.270-5  Key personnel.

    Insert the following clause in all solicitations and resultant 
contracts which require Key Personnel, regardless of the type of 
contract.

                        Key Personnel (JAN 2006)

    The key personnel specified in this contract are considered to be 
essential to work performance. At least 30 days prior to diverting any 
of the specified individuals to other programs or contracts (or as soon 
as possible, if an individual must be replaced, for example, as a result 
of leaving the employ of the Contractor), the Contractor shall notify 
the Contracting Officer and shall submit comprehensive justification for 
the diversion or replacement request (including proposed substitutions 
for key personnel) to permit evaluation by the Government of the impact 
on performance under this contract. The Contractor shall not divert or 
otherwise replace any key personnel without the written

[[Page 84]]

consent of the Contracting Officer. The Government may modify the 
contract to add or delete key personnel at the request of the contractor 
or Government.

                             (End of clause)

[71 FR 76509, Dec. 20, 2006]



Sec. 352.270-6  Publications and publicity.

    Insert the following clause in all solicitations and resultant 
contracts.

                  Publications and Publicity (JAN 2006)

    (a) Unless otherwise specified in this contract and the 
Confidentiality of Information clause is included, the Contractor is 
encouraged to publish the results of its work under this contract. A 
copy of each article submitted by the Contractor for publication shall 
be promptly sent to the Project Officer. The Contractor shall also 
inform the Project Officer when the article or other publication is 
published, and furnish a copy of it as finally published.
    (b) The Contractor shall include in any publication resulting from 
work performed under this contract a disclaimer reading as follows:
    ``The views expressed in written conference materials or 
publications and by speakers and moderators at HHS-sponsored 
conferences, do not necessarily reflect the official policies of the 
Department of Health and Human Services; nor does mention of trade 
names, commercial practices, or organizations imply endorsement by the 
U.S. Government.''
    (c) Unless authorized by the Project Officer, the contractor shall 
not display the HHS logo on any conference materials or publications.

                             (End of clause)

[71 FR 76510, Dec. 20, 2006]



Sec. 352.270-7  Paperwork Reduction Act.

    Insert the following clause in all solicitations and contracts 
subject to the Paperwork Reduction Act requirements regarding the 
collection and recording of information from 10 or more persons other 
than Federal employees.

                   Paperwork Reduction Act (JAN 2006)

    (a) This contract involves a requirement to collect or record 
information calling either for answers to identical questions from 10 or 
more persons other than Federal employees, or information from Federal 
employees which is outside the scope of their employment, for use by the 
Federal government or disclosure to third parties; therefore, the 
Paperwork Reduction Act of 1995 (Pub. L. 104-13) shall apply to this 
contract. No plan, questionnaire, interview guide or other similar 
device for collecting information (whether repetitive or single-time) 
may be used without first obtaining clearance from the Office of 
Management and Budget (OMB). Contractors and Project Officers should be 
guided by the provisions of 5 CFR part 1320, Controlling Paperwork 
Burdens on the Public, and seek the advice of the HHS operating division 
or Office of the Secretary Reports Clearance Officer to determine the 
procedures for acquiring OMB clearance.
    (b) The Contractor shall not expend any funds or begin any data 
collection until OMB Clearance is received. Once OMB Clearance is 
received from the Project Officer, the Contracting Officer shall provide 
the Contractor with written notification authorizing the expenditure of 
funds and the collection of data. The Contractor must allow at least 120 
days for OMB clearance. Excessive delays caused by the Government which 
arise out of causes beyond the control and without the fault or 
negligence of the Contractor will be considered in accordance with the 
Excusable Delays or Default clause of this contract.

                             (End of clause)

[71 FR 76510, Dec. 20, 2006]



Sec. 352.270-8  Protection of human subjects.

    (a) Include the following provision in solicitations expected to 
involve human subjects:

  Notice to Offerors of Requirements of 45 CFR Part 46, Protection of 
                        Human Subjects (JAN 2006)

    (a) Copies of the Department of Health and Human Services (HHS) 
regulations for the protection of human subjects, 45 CFR part 46, are 
available from the Office for Human Research Protections (OHRP), 
Bethesda, Maryland 20892. The regulations provide a systematic means, 
based on established ethical principles, to safeguard the rights and 
welfare of individuals who participate as subjects in research 
activities supported or conducted by HHS.
    (b) The regulations define a human subject as a living individual 
about whom an investigator (whether professional or student) conducting 
research obtains data through intervention or interaction with the 
individual, or identifiable private information. The regulations extend 
to the use of human organs, tissue, and body fluids from individually 
identifiable human subjects as well as to graphic, written, or recorded 
information derived from individually identifiable human subjects. The 
use of autopsy materials is

[[Page 85]]

governed by applicable State and local law and is not directly regulated 
by 45 CFR part 46.
    (c) Activities in which the only involvement of human subjects will 
be in one or more of the categories set forth in 45 CFR 46.101(b)(1-6) 
are exempt from coverage.
    (d) Inappropriate designations of the noninvolvement of human 
subjects or of exempt categories of research in a project may result in 
delays in the review of a proposal. The OPDIV will make a final 
determination of whether the proposed activities are covered by the 
regulations or are in an exempt category, based on the information 
provided in the proposal. In doubtful cases, prior consultation with 
OHRP, (telephone: 301-496-7014), is recommended.
    (e) In accordance with 45 CFR part 46, prospective Contractors being 
considered for award shall be required to file with OHRP an acceptable 
Assurance of Compliance with the regulations, specifying review 
procedures and assigning responsibilities for the protection of human 
subjects. The initial and continuing review of a research project by an 
institutional review board shall assure that the rights and welfare of 
the human subjects involved are adequately protected, that the risks to 
the subjects are reasonable in relation to the potential benefits, if 
any, to the subjects and the importance of the knowledge to be gained, 
and that informed consent will be obtained by methods that are adequate 
and appropriate. HHS regulations for the protection of human subjects 
(45 CFR part 46), information regarding OHRP registration and assurance 
requirements/processes, and OHRP contact information can be accessed at 
the OHRP Web site: http://www.hhs.gov/ohrp/.
    (f) It is recommended that OHRP be consulted for advice or guidance 
concerning either regulatory requirements or ethical issues pertaining 
to research involving human subjects.

                           (End of provision)

    (b) Include the following clause in solicitations and resultant 
contracts involving human subjects:

                 Protection of Human Subjects (JAN 2006)

    (a) The Contractor agrees that the rights and welfare of human 
subjects involved in research under this contract shall be protected in 
accordance with 45 CFR part 46 and with the Contractor's current 
Assurance of Compliance on file with the Office for Human Research 
Protections (OHRP), Office of Public Health and Science (OPHS). The 
Contractor further agrees to provide certification at least annually 
that the Institutional Review Board has reviewed and approved the 
procedures, which involve human subjects in accordance with 45 CFR part 
46 and the Assurance of Compliance.
    (b) The Contractor shall bear full responsibility for the 
performance of all work and services involving the use of human subjects 
under this contract and shall ensure that work is conducted in a proper 
manner and as safely as is feasible. The parties hereto agree that the 
Contractor retains the right to control and direct the performance of 
all work under this contract. Nothing in this contract shall be deemed 
to constitute the Contractor or any subcontractor, agent or employee of 
the Contractor, or any other person, organization, institution, or group 
of any kind whatsoever, as the agent or employee of the Government. The 
Contractor agrees that it has entered into this contract and will 
discharge its obligations, duties, and undertakings and the work 
pursuant thereto, whether requiring professional judgment or otherwise, 
as an independent contractor without imputing liability on the part of 
the Government for the acts of the Contractor or its employees.
    (c) If at any time during the performance of this contract, the 
Contracting Officer determines, in consultation with the OHRP, OPHS, 
ASH, that the Contractor is not in compliance with any of the 
requirements and/or standards stated in paragraphs (a) and (b) above, 
the Contracting Officer may immediately suspend, in whole or in part, 
work and further payments under this contract until the Contractor 
corrects the noncompliance. Notice of the suspension may be communicated 
by telephone and confirmed in writing. If the Contractor fails to 
complete corrective action within the period of time designated in the 
Contracting Officer's written notice of suspension, the Contracting 
Officer may, in consultation with OHRP, OPHS, ASH, terminate this 
contract in a whole or in part, and the Contractor's name may be removed 
form the list of those contractors with approved Health and Human 
Services Human Subject Assurances.

                             (End of clause)

[71 FR 76510, Dec. 20, 2006]



Sec. 352.270-9  Care of laboratory animals.

    (a) Include the following provision in solicitations expected to 
involve vertebrate animals:

Notice to Offerors of Requirement for Compliance With the Public Health 
 Service Policy on Humane Care and Use of Laboratory Animals (JAN 2006)

    The PHS Policy on Humane Care and Use of Laboratory Animals by 
Awardee Institutions establishes a number of requirements

[[Page 86]]

for research activities involving animals. Before award may be made to 
an applicant organization, the organization shall file, with the Office 
of Laboratory Animal Welfare (OLAW), National Institutes of Health 
(NIH), a written Animal Welfare Assurance which commits the organization 
to comply with the provisions of the PHS Policy on Humane Care and Use 
of Laboratory Animals by Awardee Institutions, the Animal Welfare Act, 
and the Guide for the Care and Use of Laboratory Animals prepared by the 
Institute of Laboratory Animal Resources. In accordance with the PHS 
Policy on Humane Care and Use of Laboratory Animals by Awardee 
Institutions, applicant organizations must establish a committee, 
qualified through the experience and expertise of its members, to 
oversee the institution's animal program, facilities and procedures. No 
award involving the use of animals shall be made unless OLAW approves 
the Animal Welfare Assurance. Prior to award, the Contracting Officer 
will notify Contractor(s) selected for projects that involve live 
vertebrate animals that an Animal Welfare Assurance is required. The 
Contracting Officer will request that OLAW negotiate an acceptable 
Animal Welfare Assurance with those Contractor(s). For further 
information, contact OLAW at NIH, Bethesda, Maryland 20892 (301-496-
7163).

                           (End of provision)

    (b) Include the following clause in all solicitations and resultant 
contracts involving research on vertebrate animals:

             Care of Live Vertebrate Animals (January 2006)

    (a) Before undertaking performance of any contract involving animal 
related activities, the Contractor shall register with the Secretary of 
Agriculture of the United States in accordance with 7 U.S.C. 2136 and 9 
CFR 2.25 through 2.28. The Contractor shall furnish evidence of the 
registration to the Contracting Officer.
    (b) The Contractor shall acquire vertebrate animals used in research 
from a dealer licensed by the Secretary of Agriculture under 7 U.S.C. 
2133 and 9 CFR 2.1 through 2.11, or from a source that is exempt from 
licensing under those sections.
    (c) The Contractor agrees that the care and use of any live 
vertebrate animals used or intended for use in the performance of this 
contract will conform with the PHS Policy on Humane Care of Use of 
Laboratory Animals, the current Animal Welfare Assurance, the Guide for 
the Care and Use of Laboratory Animals prepared by the Institute of 
Laboratory Animal Resources and the pertinent laws and regulations of 
the United States Department of Agriculture (see 7 U.S.C. 2131 et seq. 
and 9 CFR Subchapter A, Parts 1-4). In case of conflict between 
standards, the more stringent standard shall be used.
    (d) If at any time during performance of this contract, the 
Contracting Officer determines, in consultation with the Office of 
Laboratory Animal Welfare (OLAW), National Institutes of Health (NIH), 
that the Contractor is not in compliance with any of the requirements 
and/or standards stated in paragraphs (a) through (c) above, the 
Contracting Officer may immediately suspend, in whole or in part, work 
and further payments under this contract until the Contractor corrects 
the noncompliance. Notice of the suspension may be communicated by 
telephone and confirmed in writing. If the Contractor fails to complete 
corrective action within the period of time designated in the 
Contracting Officer's written notice of suspension, the Contracting 
Officer may, in consultation with OLAW, NIH, terminate this contract in 
whole or in part, and the Contractor's name may be removed from the list 
of those contractors with approved PHS Animal Welfare Assurances.
    Note: The Contractor may request registration of its facility and a 
current listing of licensed dealers from the Regional Office of the 
Animal and Plant Health Inspection Service (APHIS), USDA, for the region 
in which its research facility is located. The location of the 
appropriate APHIS Regional Office, as well as information concerning 
this program may be obtained by contacting the Animal Care Staff, USDA/
APHIS, 4700 River Road, Riverdale, Maryland 20737.

                             (End of clause)

[71 FR 76511, Dec. 20, 2006]



Sec. 352.270-10  Anti-lobbying.

    Insert the following clause in all solicitations and resultant 
contracts expected to exceed $100,000:

                        Anti-Lobbying (JAN 2006)

    Pursuant to the current HHS annual appropriations act, except for 
normal and recognized executive-legislative relationships, the 
Contractor shall not use any HHS contract funds for (i) publicity or 
propaganda purposes; (ii) the preparation, distribution, or use of any 
kit, pamphlet, booklet, publication, radio, television or video 
presentation designed to support or defeat legislation pending before 
the Congress or any State legislature, except in presentation to the 
Congress or any State legislature itself; or (iii) payment of salary or 
expenses of the Contractor, or any agent acting for the Contractor, 
related to any activity designed to

[[Page 87]]

influence legislation or appropriations pending before the Congress or 
any State legislature.

                             (End of Clause)

[71 FR 76511, Dec. 20, 2006]



Sec. 352.270-11  Privacy Act.

    The following clause shall be used as prescribed in 324.103(a):

                         Privacy Act (JAN 2006)

    This contract requires the Contractor to perform one or more of the 
following: (a) Design; (b) develop; or (c) operate a Federal agency 
system of records to accomplish an agency function in accordance with 
the Privacy Act of 1974 (Act) (5 U.S.C. 552a(m)(1)) and applicable 
agency regulations. The term ``system of records'' means a group of any 
records under the control of any agency from which information is 
retrieved by the name of the individual or by some identifying number, 
symbol, or other identifying particular assigned to the individual.
    Violations of the Act by the Contractor and/or its employees may 
result in the imposition of criminal penalties (5 U.S.C. 552a(i)). The 
Contractor shall ensure that each of its employees knows the prescribed 
rules of conduct and that each employee is aware that he/she is subject 
to criminal penalties for violation of the Act to the same extent as HHS 
employees. These provisions also apply to all subcontracts awarded under 
this contract which require the design, development or operation of the 
designated system(s) of records (5 U.S.C. 552a(m)(1)).
    The contract work statement: (a) identifies the system(s) of records 
and the design, development, or operation work to be performed by the 
Contractor; and (b) specifies the disposition to be made of such records 
upon completion of contract performance.

                             (End of clause)

[71 FR 76511, Dec. 20, 2006]



Sec. 352.270-12  Pro-Children Act.

    Insert the following clause in all solicitations and resultant 
contracts and orders, regardless of dollar amount, for (i) kindergarten, 
elementary, or secondary education or library services or (ii) health or 
day care services that are provided to children under the age of 18 on a 
routine or regular basis pursuant to the Pro-Children Act of 1994:

                   Pro-Children Act of 1994 (JAN 2006)

    Public Law 103-227, Title X, Part C, also known as the Pro-Children 
Act of 1994 (Act), 20 U.S.C. 7183, imposes restrictions on smoking in 
facilities where certain federally funded children's services are 
provided. The Act prohibits smoking within any indoor facility (or 
portion thereof), whether owned, leased, or contracted for, that is used 
for the routine or regular provision of (i) kindergarten, elementary, or 
secondary education or library services or (ii) health or day care 
services that are provided to children under the age of 18. The 
statutory prohibition also applies to indoor facilities that are 
constructed, operated, or maintained with Federal funds.
    By acceptance of this contract or order, the Contractor agrees to 
comply with the requirements of the Act. The Act also applies to all 
subcontracts awarded under this contract for the specified children's 
services. Accordingly, the Contractor shall ensure that each of its 
employees, and any subcontractor staff, is made aware of, understand, 
and comply with the provisions of the Act.
    Failure to comply with the Act may result in the imposition of a 
civil monetary penalty in an amount not to exceed $1,000 for each 
violation and/or the imposition of an administrative compliance order on 
the responsible entity. Each day a violation continues constitutes a 
separate violation.

                             (End of clause)

[71 FR 76511, Dec. 20, 2006]



Sec. 352.270-13  Tobacco-free facilities.

    Insert the following clause in all new solicitations and resultant 
contracts and orders (including construction) and all modifications 
resulting from the exercise of an option under a contract or order, 
regardless of dollar value, where some or all of the Contractor's 
performance, will take place on HHS properties. This clause is not 
required to be included if contract or order performance requires only 
that Contractor staff attend occasional meetings on HHS properties. In 
this case, Contractor employees are considered ``visitors.'' Further, 
for any proposed or existing construction contract or order, the 
Contracting Officer should coordinate any exceptions to the policy 
raised by an incumbent or potential Contractor based on union or 
collective bargaining agreements with the designated OPDIV tobacco-free 
policy contact point for final disposition.

                   Tobacco-Free Facilities (JAN 2006)

    In accordance with Department of Health and Human Services (HHS) 
policy, the Contractor and its staff are prohibited from

[[Page 88]]

using tobacco products of any kind (e.g., cigarettes, cigars, pipes, and 
smokeless tobacco) while on any HHS property, including use in personal 
or company vehicles operated by Contractor employees while on an HHS 
property. This policy also applies to all subcontracts awarded under the 
contract or order.
    The term ``HHS properties'' includes all properties owned, 
controlled and/or leased by HHS when totally occupied by HHS, including 
all indoor and outdoor areas of such properties. Where HHS only 
partially occupies such properties, it includes all HHS-occupied 
interior space. Where HHS leases space in a multi-occupant building or 
complex, the tobacco-free HHS policy will apply to the maximum area 
permitted by law and compliance with the provisions of any current lease 
agreements.
    The Contractor shall ensure that each of its employees, and any 
subcontractor staff, is made aware of, understand, and comply with this 
policy.

                             (End of clause)

[71 FR 76511, Dec. 20, 2006]



Sec. 352.270-14  Restriction on use of human subjects.

    If the Contractor has an approved Federal-wide assurance of 
compliance in place, but the certification that the Institutional Review 
Board (IRB) designated under the assurance has reviewed and approved the 
research cannot be completed prior to contract award because definite 
plans for involvement of human subjects are not set forth in the 
proposal (e.g., projects in which human subjects' involvement will 
depend upon completion of instruments, prior animal studies, or 
purification of compounds), the award may be made without the requisite 
certification as long as the contract is appropriately conditioned. 
Under these conditions, insert the following clause in applicable 
contracts:

           Restriction on Use of Human Subjects (January 2006)

    Pursuant to 45 CFR part 46, Protection of Human Research Subjects, 
the Contractor shall not expend funds under this award for research 
involving human subjects or engage in any human subjects research 
activity prior to the receipt by the Contracting Officer of a 
certification that the research has been reviewed and approved by the 
Institutional Review Board (IRB) designated under the Contractor's 
Federal-wide assurance of compliance. This restriction applies to all 
collaborating sites, whether domestic or foreign, and subcontractors. 
The Contractor must ensure compliance by collaborators and 
subcontractors.

                             (End of clause)

[71 FR 76511, Dec. 20, 2006]



Sec. 352.270-15  Salary rate limitation.

    Insert the following clause in all new NIH, SAMHSA, and AHRQ 
solicitations and resultant contracts and orders (except fixed-price 
completion contracts) and modifications of existing contracts for 
projects that support extramural activities. Projects that support 
extramural activities include extramural R&D, SAMHSA's mission-related 
requirements, and those activities commonly referred to as ``extramural 
R&D support.''

OR

    Insert the following clause in all new NIH, SAMHSA, and AHRQ 
solicitations and resultant contracts (except fixed-price completion 
contracts) and modifications of existing contracts for extramural R&D 
and SAMHSA's mission-related requirements. Projects that are not 
considered R&D but that support extramural R&D activities (commonly 
referred to as ``extramural R&D support'') are OR are not included.

                    Salary Rate Limitation (JAN 2006)

    Pursuant to the applicable HHS appropriations acts cited in the 
table below, the Contractor shall not use contract funds to pay the 
direct salary of an individual at a rate in excess of the salary level 
in effect on the date the expense is incurred as shown in the table 
below.
    For purposes of the salary limitation, the terms ``direct salary,'' 
``salary,'' and ``institutional base salary'' have the same meaning and 
are collectively referred to as ``direct salary'' in this clause. An 
individual's direct salary is the annual compensation that the 
Contractor pays for an individual's appointment whether that 
individual's time is spent on research, teaching, patient care, or other 
activities. Direct salary excludes any income that an individual may be 
permitted to earn outside of duties to the Contractor. Direct salary 
also excludes fringe benefits, overhead, and general and administrative 
expenses (also referred to as indirect costs or facilities and 
administrative [F&A] costs).
    The salary rate limitation also applies to individuals performing 
under subcontracts.

[[Page 89]]

However, it does not apply to fees paid to consultants. If this is a 
multiple-year contract, it may be subject to unilateral modification by 
the Contracting Officer to ensure that an individual is not paid at a 
rate that exceeds the salary rate limitation provision established in 
the HHS appropriations act in effect when the expense is incurred 
regardless of the rate initially used to establish contract funding.

------------------------------------------------------------------------
                                                                Salary
                                                              limitation
             Public law                  Period covered       (based on
                                                              Executive
                                                               Level I)
------------------------------------------------------------------------
108-447, Div F, Title II, General    10/01/05--12/31/05....     $180,100
 Provisions, Section 204.
109-149, General Provisions,         01/01/06--until            $183,500
 Section 204.                         revised.
------------------------------------------------------------------------

    Executive Level salaries for the current and prior periods can be 
found at the following Web site: http://www.opm.gov/oca/05tables/html/
ex.asp. Click on ``Salaries and Wages'' and then scroll to the bottom of 
the page to select the desired period.

                             (End of Clause)

[71 FR 76511, Dec. 20, 2006]



Sec. 352.270-16  Native American Graves Protection and Repatriation Act.

    Insert the following clause in any solicitation and resultant 
contract or order that requires performance on tribal lands and all 
solicitations and resultant contracts or orders for construction on 
Federal or tribal lands, regardless of dollar amount:

    Native American Graves Protection and Repatriation Act (JAN 2006)

    Public Law 101-601, dated November 16, 1990, also known as the 
Native American Graves Protection and Repatriation Act (Act), imposes 
certain responsibilities on individuals and organizations when they 
discover Native American cultural items (including human remains) on 
Federal or tribal lands.
    In the event the Contractor discovers Native American cultural items 
(including human remains, associated funerary objects, unassociated 
funerary objects, sacred objects and cultural patrimony), as defined in 
the Act during contract performance, the Contractor shall: (i) 
Immediately cease activity in the area of the discovery; (ii) notify the 
Contracting Officer of the discovery; and (iii) make a reasonable effort 
to protect the items discovered before resuming such activity. Upon 
receipt of the Contractor's discovery notice, the Contracting Officer 
will notify the appropriate authorities as required by the Act.
    Unless otherwise specified by the Contracting Officer, the 
Contractor may resume activity in the area on the 31st calendar day 
following the date that the appropriate authorities certify receipt of 
the discovery notice. The date that the appropriate authorities certify 
receipt of the discovery notice and the date on which the Contractor may 
resume activities shall be provided to the Contractor by the Contracting 
Officer.

                             (End of clause)

[71 FR 76511, Dec. 20, 2006]



Sec. 352.270-17  Crime Control Act--Reporting of child abuse.

    Insert the following clause in all solicitations and resultant 
contracts and orders, regardless of dollar amount, where performance 
will take place on Federal land or in a federally-operated (or 
contracted) facility and that involve the professions/activities 
performed by persons specified in the Crime Control Act of 1990, 
including, but not limited to, physicians, nurses, dentists, health care 
practitioners, optometrists, psychologists, emergency medical 
technicians, alcohol or drug treatment personnel, child care workers and 
administrators, emergency medical technicians and ambulance drivers:

     Crime Control Act of 1990--Reporting of Child Abuse (JAN 2006)

    Public Law 101-647, also known as the Crime Control Act of 1990 
(Act), imposes responsibilities on certain individuals who, while 
engaged in a professional capacity or activity, as defined in the Act, 
on Federal land or in a federally-operated (or contracted) facility, 
learn of facts that give the individual reason to suspect that a child 
has suffered an incident of child abuse.
    The Act designates ``covered professionals'' as those persons 
engaged in professions and activities in eight different categories 
including, but not limited to, physicians, dentists, medical residents 
or interns, hospital personnel and administrators, nurses, health care 
practitioners, chiropractors, osteopaths,

[[Page 90]]

pharmacists, optometrists, podiatrists, emergency medical technicians, 
ambulance drivers, alcohol or drug treatment personnel, psychologists, 
psychiatrists, mental health professionals, child care workers and 
administrators, and commercial film and photo processors. The Act 
defines the term ``child abuse'' as the physical or mental injury, 
sexual abuse or exploitation, or negligent treatment of a child.
    Accordingly, any person engaged in a covered profession or activity 
under an HHS contract or subcontract, regardless of the purpose of the 
contract or subcontract, shall immediately report a suspected child 
abuse incident in accordance with the provisions of the Act. If a child 
is suspected of being harmed, the appropriate State Child Abuse Hotline, 
local child protective services (CPS), or law enforcement agency should 
be contacted. For more information about where and how to file a report, 
the Childhelp USA[supreg], National Child Abuse Hotline (1-800-4-A-
CHILD[supreg]) should be called. Any covered professional failing to 
make a timely report of such incident shall be guilty of a Class B 
misdemeanor.
    By acceptance of this contract or order, the Contractor agrees to 
comply with the requirements of the Act. The Act also applies to all 
applicable subcontracts awarded under this contract. Accordingly, the 
Contractor shall ensure that each of its employees, and any 
subcontractor staff, is made aware of, understand, and comply with the 
provisions of the Act.

                             (End of clause)

[71 FR 76511, Dec. 20, 2006]



Sec. 352.270-18  Crime Control Act--Requirement for background checks.

    Insert the following clause in all solicitations and resultant 
contracts and orders, regardless of dollar amount, for all child care 
services to children under the age of 18, including social services, 
health and mental health care, child (day) care, education (whether or 
not directly involved in teaching), and rehabilitative programs covered 
under the Crime Control Act of 1990 (Act):

 Crime Control Act of 1990--Requirement for Background Checks (JAN 2006)

    Public Law 101-647, also known as the Crime Control Act of 1990 
(Act), requires that all individuals involved with the provision of 
child care services to children under the age of 18 undergo a criminal 
background check. ``Child care services'' include, but are not limited 
to, social services, health and mental health care, child (day) care, 
education (whether or not directly involved in teaching), and 
rehabilitative programs. Any conviction for a sex crime, an offense 
involving a child victim, or a drug felony, may be grounds for denying 
employment or for dismissal of an employee providing any of the services 
listed above.
    The Contracting Officer will provide the necessary information to 
the Contractor regarding the process for obtaining the background check. 
The Contractor may hire a staff person provisionally prior to the 
completion of a background check, if at all times prior to the receipt 
of the background check during which children are in the care of the 
newly-hired person, the person is within the sight and under the 
supervision of a previously investigated staff person.
    By acceptance of this contract or order, the Contractor agrees to 
comply with the requirements of the Act. The Act also applies to all 
applicable subcontracts awarded under this contract. Accordingly, the 
Contractor shall ensure that each of its employees, and any 
subcontractor staff, is made aware of, understand, and comply with the 
provisions of the Act.

                             (End of clause)

[71 FR 76511, Dec. 20, 2006]



Sec. 352.270-19  Electronic information and technology accessibility.

    (a) The following clause shall be used in solicitations as provided 
in 339.201-70:

     Electronic and Information Technology Accessibility (JAN 2006)

    Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d), as 
amended by Public Law 105-220 under Title IV (Rehabilitation Act 
Amendments of 1998) and the Architectural and Transportation Barriers 
Compliance Board Electronic and Information (EIT) Accessibility 
Standards (36 CFR part 1194), require that all EIT acquired must ensure 
that:
    (1) Federal employees with disabilities have access to and use of 
information and data that is comparable to the access and use by Federal 
employees who are not individuals with disabilities; and
    (2) Members of the public with disabilities seeking information or 
services from an agency have access to and use of information and data 
that is comparable to the access to and use of information and data by 
members of the public who are not individuals with disabilities.
    This requirement includes the development, procurement, maintenance, 
and/or use of EIT products/services; therefore, any proposal submitted 
in response to this solicitation must demonstrate compliance with the

[[Page 91]]

established EIT Accessibility Standards. Information about Section 508 
is available at http://www.section508.gov/.

                           (End of provision)

    (b) The following clause shall be used in contracts and orders as 
provided in 339.201-70:

     Electronic and Information Technology Accessibility (JAN 2006)

    Pursuant to Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 
794d) as amended by Public Law 105-220 under Title IV (Rehabilitation 
Act Amendments of 1998), all Electronic and Information Technology (EIT) 
developed, procured, maintained, and/or used under this contract shall 
be in compliance with the ``Electronic and Information Technology 
Accessibility Standards'' set forth by the Architectural and 
Transportation Barriers Compliance Board (also referred to as the 
``Access Board'') in 36 CFR part 1194. The complete text of Section 508 
Final Standards can be accessed at http://www.access-board.gov/sec508/
standards.htm.
    The standards applicable to this requirement are [identified in the 
Statement of Work/listed below]:

(Select the appropriate phrase within the brackets [ ] and complete if 
necessary and identify location of/provide complete list of applicable 
provisions. Use the Buy accessible wizard at http://
www.buyaccessible.gov if necessary or contact your Section 508 
Coordinator)

    Vendors may document conformance using [attached documentation/
industry-standard Voluntary Product Accessibility Template at http:// 
www.itic.org/ archives/articles/ 20040506/faq --voluntary --product--
accessibility --template-- vpat.php] (select the appropriate phrase 
within the brackets [ ]). Vendors should provide detailed information 
necessary for determining compliance, including defined contractor-
incidental exceptions.

                             (End of clause)

[71 FR 76511, Dec. 20, 2006]



Sec. 352.333-7001  Choice of Law (Overseas).

    As prescribed in 333.215-70, use the following clause:

                        Choice of Law (Overseas)

    This contract shall be construed and interpreted in accordance with 
the substantive laws of the United States of America. By the execution 
of this contract, the contractor expressly agrees to waive any rights to 
invoke the jurisdiction of local national courts where this contract is 
performed and agrees to accept the exclusive jurisdiction of the United 
States Armed Services Board of Contract Appeals and the United States 
Court of Federal Claims for hearing and determination of any and all 
disputes that may arise under the Disputes clause of this contract.

[70 FR 41, Jan. 3, 2005]

                             PART 353_FORMS

                  Subpart 353.3_Illustrations of Forms

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4262, Jan. 17, 2001, unless otherwise noted.



Sec. 353.370-674  Form HHS 674, Structured Approach Profit/Fee 
          Objective.

    This form is available from local cost advisory personnel. For 
copies of the form, contact the Program Support Center at (301) 443-
6740.

[[Page 92]]

                    SUBCHAPTER T_HHS SUPPLEMENTATIONS

             PART 370_SPECIAL PROGRAMS AFFECTING ACQUISITION

 Subpart 370.1_Accessibility of Meetings, Conferences, and Seminars to 
                        Persons With Disabilities

Sec.

Sec. 370.101 Policy.

Sec. 370.102 Responsibilities.

      Subpart 370.2_Indian Preference in Employment, Training, and 
                      Subcontracting Opportunities


Sec. 370.201 Statutory requirements.

Sec. 370.202 Applicability.

Sec. 370.203 Definitions.

Sec. 370.204 Compliance enforcement.

Sec. 370.205 Tribal preference requirements.

           Subpart 370.3_Acquisitions Involving Human Subjects


Sec. 370.300 Scope of subpart.

Sec. 370.301 Policy.

Sec. 370.302 Types of assurances.

Sec. 370.303 Notice to offerors.

Sec. 370.304 Contract clause.

   Subpart 370.4_Acquisitions Involving the Use of Laboratory Animals


Sec. 370.400 Scope of subpart.

Sec. 370.401 Policy.

Sec. 370.402 Assurances.

Sec. 370.403 Notice to offerors.

Sec. 370.404 Contract clause.

           Subpart 370.5_Acquisitions Under the Buy Indian Act


Sec. 370.500 Scope of subpart.

Sec. 370.501 Policy.

Sec. 370.502 Definitions.

Sec. 370.503 Requirements.

Sec. 370.504 Competition.

Sec. 370.505 Responsibility determinations.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

    Source: 66 FR 4262, Jan. 17, 2001, unless otherwise noted.

 Subpart 370.1_Accessibility of Meetings, Conferences, and Seminars to 
                        Persons With Disabilities



Sec. 370.101  Policy.

    (a) It is the policy of HHS that all meetings, conferences, and 
seminars be accessible to persons with disabilities. For the purpose of 
this policy, accessibility is defined as both physical access to 
meeting, conference, and seminar sites, and aids and services to enable 
individuals with sensory disabilities to fully participate in meetings, 
conferences, and seminars.
    (b) In regard to acquisition, the policy is applicable to all 
contracts where the statement of work requires the contractor to conduct 
meetings, conferences, or seminars that are open to the public or 
involve HHS personnel, but not to ad hoc meetings that may be necessary 
or incidental to contract performance.



Sec. 370.102  Responsibilities.

    (a) The Contracting Officer shall include the clause in 352.270-1 in 
every solicitation and resulting contract when the statement of work 
requires the contractor to conduct meetings, conferences, or seminars in 
accordance with 370.101(b).
    (b) The Project Officer shall be responsible for obtaining, 
reviewing, and approving the contractor's plan, which is to be submitted 
in response to paragraph (a) of the contract clause in 352.270-1. A 
consolidated or master plan for contracts requiring numerous meetings, 
conferences, or seminars will be acceptable. The Project Officer, prior 
to approving the plan, should consult with the OPDIV or other designated 
organization responsible for ensuring compliance with the Architectural 
Barriers Act of 1968 and the Americans with Disabilities Act of 1990 to 
ensure that the contractor's plan meets the accessibility requirements 
of the contract clause. The Project Officer shall ask the responsible 
organization to review, and determine the adequacy of, the contractor's 
plan, and respond to the Project Officer, in writing, within ten (10) 
working days of receiving the request from the Project Officer.

[71 FR 76514, Dec. 20, 2006]

[[Page 93]]

      Subpart 370.2_Indian Preference in Employment, Training, and 
                      Subcontracting Opportunities



Sec. 370.201  Statutory requirements.

    Section 7(b) of the Indian Self-Determination and Education 
Assistance Act, Public Law 93-638, 88 Stat. 2205, 25 U.S.C. 450e(b), 
requires:

    ``Any contract, subcontract, grant, or subgrant pursuant to this 
Act, the Act of April 16, 1934 (48 Stat. 596), as amended, or any other 
Act authorizing Federal contracts with or grants to Indian organizations 
or for the benefit of Indians, shall require that to the greatest extent 
feasible:
    (1) Preferences and opportunities for training and employment in 
connection with the administration of such contracts or grants shall be 
given to Indians; and
    (b) Preference in the award of subcontracts and subgrants in 
connection with the administration of such contracts or grants shall be 
given to Indian organizations and to Indian-owned economic enterprises 
as defined in section 3 of the Indian Financing Act of 1974 (88 Stat. 
77).''



Sec. 370.202  Applicability.

    The Indian Preference clause set forth in 352.270-2 and the Indian 
Preference Program clause set forth in 352.270-3 have been developed to 
implement section 7 (b) of Public Law 93-638 for all activities of the 
Department. The clauses shall be used by any affected departmental 
contracting activity as follows, except solicitations issued and 
contracts awarded pursuant to Title I of Public Law 93-638 (25 U.S.C. 
450 et seq.) are exempted:
    (a) The Indian Preference clause (352.270-2) shall be included in 
each solicitation and resultant contract, regardless of dollar amount:
    (1) When the contract is to be awarded pursuant to an act 
specifically authorizing contracts with Indian organizations; or
    (2) Where the work to be performed under the contract is 
specifically for the benefit of Indians and is in addition to any 
incidental benefits which might otherwise accrue to the general public.
    (b) The Indian Preference Program clause (352.270-3) shall be 
included in each solicitation and resultant contract when:
    (1) The dollar amount of the acquisition is expected to equal or 
exceed $50,000 for nonconstruction work or $100,000 for construction 
work;
    (2) The Indian Preference clause is to be included in the 
solicitation and resultant contract; and
    (3) The determination is made, prior to solicitation, that the work 
to be performed under the resultant contract will take place in whole or 
in substantial part on or near an Indian reservation(s). In addition, 
the Indian Preference Program clause may be included in any solicitation 
and resultant contract below the $50,000 or $100,000 level for 
nonconstruction or construction contracts, respectively, but which meet 
the requirements of paragraphs (b)(2) and (3) of this section 370.202, 
and, in the opinion of the contracting activity, offer substantial 
opportunities for Indian employment, training, and subcontracting.



Sec. 370.203  Definitions.

    For purposes of this subpart 370.2, the following definitions shall 
apply:
    (a) Indian means a person who is a member of an Indian Tribe. If the 
contractor has reason to doubt that a person seeking employment 
preference is an Indian, the contractor shall grant the preference but 
shall require the individual to provide evidence within thirty (30) days 
from the Tribe concerned that the person is a member of the Tribe.
    (b) Indian Tribe means an Indian Tribe, pueblo, band, nation, or 
other organized group or community, including any Alaska Native Village 
or regional or village corporation as defined in or established pursuant 
to the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C. 
1601) which is recognized as eligible for the special programs and 
services provided by the United States to Indians because of their 
status as Indians.
    (c) Indian organization means the governing body of any Indian Tribe 
or entity established or recognized by such governing body in accordance 
with the Indian Financing Act of 1974 (88 Stat. 77, 25 U.S.C. 1451).
    (d) Indian-owned economic enterprise means any Indian-owned 
commercial, industrial, or business activity established or organized 
for the purpose of

[[Page 94]]

profit, provided that such Indian ownership shall constitute not less 
than 51 percent of the enterprise, and the ownership shall encompass 
active operation and control of the enterprise.
    (e) Indian reservation includes Indian reservations, public domain 
Indian allotments, former Indian reservations in Oklahoma, and land held 
by incorporated Native groups, regional corporations, and village 
corporations under the provisions of the Alaska Native Claims Settlement 
Act (85 Stat. 688, 43 U.S.C. 1601 et seq.)
    (f) On or near an Indian Reservation means on a reservation or 
reservations or within that area surrounding an Indian reservation(s) 
where a person seeking employment could reasonably be expected to 
commute to and from in the course of a work day.



Sec. 370.204  Compliance enforcement.

    (a) The concerned contracting activity shall be responsible for 
conducting periodic reviews to insure contractor compliance with the 
requirements of the clauses set forth in 352.270-2 and 352.270-3. These 
reviews may be conducted with the assistance of the Indian Tribe(s) 
concerned.
    (b) Complaints of noncomplaince with the requirements of the clauses 
set forth in 352.270-2 and 352.270-3 which are filed in writing with the 
contracting activity shall be promptly investigated and resolved by the 
contracting officer.



Sec. 370.205  Tribal preference requirements.

    (a) Where the work under a contract is to be performed on an Indian 
reservation, the contracting activity may supplement the clause set 
forth in 352.270-3 by adding specific Indian preference requirements of 
the Tribe on whose reservation the work is to be performed. The 
supplemental requirements shall be jointly developed for the contract by 
the contracting activity and the Tribe. Supplemental preference 
requirements must represent a further implementation of the requirements 
of section 7(b) of Public Law 93-638 and must be approved by the 
affected program director and approved for legal sufficiency by the 
General Law Division, OGC, or a regional attorney before being added to 
a solicitation and resultant contract. Any supplemental preference 
requirements to be added to the clause in 352.270-3 shall be included in 
the solicitation and clearly identified in order to insure uniform 
understanding of the additional requirements by all prospective bidders 
or offerors.
    (b) Nothing in this part shall be interpreted to preclude Tribes 
from independently developing and enforcing their own tribal preference 
requirements. Such independently developed tribal preference 
requirements shall not, except as provided in paragraph (a) of this 
section, become a requirement in contracts covered under this subpart 
370.2, and must not conflict with any Federal statutory or regulatory 
requirement concerning the award and administration of contracts.

[66 FR 4262, Jan. 17, 2001, as amended at 71 FR 76514, Dec. 20, 2006]

           Subpart 370.3_Acquisitions Involving Human Subjects



Sec. 370.300  Scope of subpart.

    This subpart applies to all research and development activities 
involving human subjects conducted under contract (see 45 CFR 46.102(d) 
and (f)).



Sec. 370.301  Policy.

    It is the policy of the Department of Health and Human Services 
(HHS) that no contract involving human subjects shall be awarded until 
acceptable assurance has been given that the activity will be subject to 
initial and continuing review by an appropriate Institutional Review 
Board (IRB) as described in HHS regulations at 45 CFR 46.103. An 
applicable Federalwide Assurance (FWA), approved by the HHS Office of 
Human Research Protections (OHRP), shall be required of each contractor, 
subcontractor, or cooperating institution having responsibility for 
human subjects involved in performance of the contract. The HHS OHRP is 
responsible for negotiating assurances covering all HHS-supported or 
HHS-conducted activities involving human subjects. OHRP shall guide 
Contracting Officers regarding nonaward or termination of a contract due 
to inadequate

[[Page 95]]

assurance or breach of assurance for protection of human subjects.

[71 FR 76514, Dec. 20, 2006]



Sec. 370.302  Types of assurances.

    (a) In January 2005, OHRP announced that the FWA would be the only 
new type of assurance accepted for review and approval by OHRP. 
Institutions holding an OHRP-approved Multiple Project Assurance (MPA) 
or Cooperative Project Assurance (CPA) were required to submit an FWA to 
OHRP for approval by December 31, 2005, if the institution is required 
to have an OHRP-approved assurance of compliance. Any Inter-
Institutional Amendment between an OHRP-approved MPA and an affiliate 
institution will be deactivated on January 1, 2006 if the affiliate 
institution has not obtained its own FWA. Single Project Assurances 
(SPAs) currently approved by OHRP will remain in effect for the duration 
of the project and through all non-competitive award renewals. An FWA 
listed in OHRP's current ``List of Registered Institutional Review 
Boards (IRBs)/Independent Ethics Committees (IECs) and Approved 
Assurances'' is acceptable for the purposes of this policy. The list may 
be found at http://ohrp.cit.nih.gov/search/asearch.asp.
    (b) The OHRP Web site includes links to instructions and the forms 
for submitting both a domestic and international FWA at http://
www.hhs.gov/ohrp/assurances/assurances--index.html. To expedite the 
approval of a FWA, as well as any update/renewal, the institution shall 
use the OHRP Electronic Submission System. Once an electronic file is 
``submitted'' to OHRP, the institution must fax or mail (do not do both) 
a copy of the signature page to initiate the review process. FWAs shall 
be mailed to the OHRP, U.S. Department of Health and Human Services, 
1101 Wootton Parkway, Suite 200, Rockville, Maryland 20852, or faxed to 
OHRP at 240-453-8202 (do not do both).

[71 FR 76514, Dec. 20, 2006]



Sec. 370.303  Notice to offerors.

    (a) Solicitations shall contain the notice to offerors in 352.270-
8(a) whenever contract performance is expected to involve human 
subjects.
    (b) IRB approval of proposals submitted by institutions having an 
OHRP-approved FWA should be certified in the manner required by 
instructions for completion of the contract proposal; or by completion 
of an OMB Form No. 0990-0263, ``Protection of Human Subjects Assurance 
Identification/IRB Certification/Declaration of Exemption (Common Rule); 
or by letter indicating the institution's OHRP-assigned FWA number, the 
date of IRB review and approval, and the type of review (convened or 
expedited). The date of IRB approval must not be more than 12 months 
prior to the deadline for proposal submission.
    (c) FWAs for contractors, subcontractors, or cooperating 
institutions generally will not be requested prior to determination that 
a contract proposal has been selected for negotiation. When an FWA is 
submitted, it provides certification for the initial contract period. No 
additional documentation is required. If the contract provides for 
additional years to complete the project, the noncompetitive renewal 
proposal shall be certified in the manner described in the preceding 
paragraph.

[71 FR 76515, Dec. 20, 2006]



Sec. 370.304  Contract clause.

    The clause set forth in 352.270-8(b) shall be inserted in all 
solicitations and resultant contracts involving human subjects.

   Subpart 370.4_Acquisitions Involving the Use of Laboratory Animals



Sec. 370.400  Scope of subpart.

    This subpart applies to all research, research training and 
biological testing activities involving live vertebrate animals 
conducted under contract (see Public Health Service Policy on Humane 
Care and Use of Laboratory Animals (PHS Policy), Rev. 1986, Repr. 1996).



Sec. 370.401  Policy.

    (a) It is the policy of the Department of Health and Human Services 
(HHS) that no contract involving live vertebrate animals shall be 
awarded

[[Page 96]]

until acceptable assurance has been given that the activity will be 
subject to initial and continuing review by an appropriate Institutional 
Animal Care and Use Committee (IACUC) as described in the PHS Policy at 
IV.B.6. and 7. An applicable Full Animal Welfare Assurance or 
Interinstitutional Agreement/Assurance, approved by the Office of 
Laboratory Animal Welfare (OLAW), National Institutes of Health (NIH), 
shall be required of each contractor, subcontractor, or cooperating 
institution having responsibility for animal care and use involved in 
performance of the contract (see PHS Policy II., IV.A., and V.B.).
    (b) The OLAW, NIH, is responsible for negotiating assurances 
covering all HHS/PHS-supported or HHS/PHS-conducted activities involving 
the care and use of live vertebrate animals. OLAW shall guide 
Contracting Officers regarding adequate animal care, and use, approval, 
disapproval, restriction, or withdrawal of approval of assurances (see 
PHS Policy V.A.).

[71 FR 76515, Dec. 20, 2006]



Sec. 370.402  Assurances.

    (a) Assurances may be one of two types:
    (1) Full Animal Welfare Assurance (AWA). An AWA describes the 
institution's complete program for the care and use of animals, 
including but not limited to the facilities, occupational health, 
training, veterinary care, IACUC procedures and lines of authority and 
responsibility. An AWA listed in OLAW's list of institutions which have 
an approved full AWA will be considered acceptable for purposes of this 
policy.
    (2) Interinstitutional Agreement/Assurance (IAA). An IAA describes 
the arrangements between an offeror and usually a subcontractor where 
animal activities will occur. An IAA is limited to the specific award or 
single project.
    (b) The Contracting Officer shall forward copies of proposals 
selected for negotiation and requiring an assurance to the Assurance 
Branch, Office of Laboratory Animal Welfare (OLAW), NIH MSC 7507, 6100 
Executive Blvd., Room 3B01, Rockville, Maryland 20892, as early as 
possible to secure the necessary assurances.
    (c) A contractor providing animal care services at an assured 
entity, such as a Government-owned, contractor-operated (GOCO) site, 
does not need a separate assurance because the GOCO site normally covers 
the contractor services in the GOCO site assurance.

[71 FR 76515, Dec. 20, 2006]



Sec. 370.403  Notice to offerors.

    Solicitations shall contain the notice to offerors in 352.270-9(a) 
whenever contract performance is expected to involve the use of live 
vertebrate animals.
    (a) For offerors having a full AWA on file with OLAW, IACUC approval 
of the use of animals shall be submitted in the manner required by 
instructions for completion of the contract proposal, but prior to the 
technical review of the proposal. The date of IACUC review and approval 
must not be more than 36 months prior to the deadline for proposal 
submission.
    (b) Non-assured offerors are not required to submit assurances or 
IACUC approval with proposals. OLAW will contact contractors, 
subcontractors and cooperating institutions to negotiate necessary 
assurances and verify IACUC approvals when requested by appropriate HHS/
PHS staff.

[71 FR 76515, Dec. 20, 2006]



Sec. 370.404  Contract clause.

    The clause set forth in 352.270-9(b) shall be included in all 
solicitations and resultant contracts involving the care and use of live 
vertebrate animals.

           Subpart 370.5_Acquisitions Under the Buy Indian Act



Sec. 370.500  Scope of subpart.

    This subpart sets forth the policy on preferential acquisition from 
Indians under the negotiation authority of the Buy Indian Act. 
Applicability of this subpart is limited to acquisitions made by or on 
behalf of the Indian Health Service of the Public Health Service.



Sec. 370.501  Policy.

    (a) The Indian Health Service will utilize the negotiation authority 
of the Buy Indian Act to give preference to

[[Page 97]]

Indians whenever the use of that authority is authorized and is 
practicable. The Buy Indian Act, 25 U.S.C. 47, prescribes the 
application of the advertising requirements of section 3709 of the 
Revised Statutes to the acquisition of Indian supplies. As set out in 25 
U.S.C. 47, the Buy Indian Act provides as follows:

    So far as may be practicable Indian labor shall be employed, and 
purchases of the products (including, but not limited to printing, 
notwithstanding any other law) of Indian industry may be made in open 
market in the discretion of the Secretary of the Interior.

    (b) The functions, responsibilities, authorities, and duties of the 
Secretary of the Interior for maintenance and operation of hospital and 
health facilities for Indians and for the conservation of the health of 
Indians are transferred to the Surgeon General of the United States 
under the supervision of the Secretary of Health and Human Services, 42 
U.S.C. 2001 (a). Accordingly, the Secretary of Health and Human Services 
is authorized to use the Buy Indian Act in the acquisition of products 
of Indian industry in connection with the maintenance and operation of 
hospital and health facilities for Indians and for the conservation of 
the health of Indians. This authority has been delegated exclusively to 
the Indian Health Service and is not available for use by any other HHS 
component (unless that component is making an acquisition on behalf of 
the Indian Health Service).
    (c) Use of the Buy Indian Act negotiation authority has been 
emphasized in subsequent legislation, particularly Public Law 94-437 and 
Public Law 96-537.



Sec. 370.502  Definitions.

    Buy Indian contract means any contract involving activities covered 
by the Buy Indian Act that is negotiated under the provisions of 41 
U.S.C. 252(c) and 25 U.S.C. 47 between an Indian firm and a contracting 
officer representing the Indian Health Service.
    Indian means a member of any tribe, pueblo, band, group, village or 
community that is recognized by the Secretary of the Interior as being 
Indian or any individual or group of individuals that is recognized by 
the Secretary of the Interior or the Secretary of Health and Human 
Services. The Secretary of Health and Human Services in making 
determinations may take into account the determination of the tribe with 
which affiliation is claimed.
    Indian firm means a sole enterprise, partnership, corporation, or 
other type of business organization owned, controlled, and operated by 
one or more Indians (including, for the purpose of sections 301 and 302 
of Public Law 94-437, former or currently federally recognized Indian 
tribes in the State of New York) or by an Indian firm; or a nonprofit 
firm organized for the benefit of Indians and controlled by Indians (see 
370.503(a)).
    Product of Indian industry means anything produced by Indians 
through physical labor or by intellectual effort involving the use and 
application of skills by them.



Sec. 370.503  Requirements.

    (a) Indian ownership. The degree of Indian ownership of an Indian 
firm shall be at least 51 percent during the period covered by a Buy 
Indian contract.
    (b) Joint ventures. An Indian firm may enter into a joint venture 
with other entities for specific projects as long as the Indian firm is 
the managing partner. However, the joint venture must be approved by the 
contracting officer prior to the award of a contract under the Buy 
Indian Act.
    (c) Bonds. In the case of contracts for the construction, 
alteration, or repair of public buildings or public works, performance 
and payment bonds are required by the Miller Act (40 U.S.C. 270a-270f) 
and FAR part 28. In the case of contracts with Indian tribes or public 
nonprofit organizations serving as governmental instrumentalities of an 
Indian tribe, bonds are not required. However, bonds are required when 
dealing with private business entities which are owned by an Indian 
tribe or members of an Indian tribe. Bonds may be required of private 
business entities which are joint ventures with, or subcontractors of, 
an Indian tribe or a public nonprofit organization serving as a 
governmental instrumentality of an Indian tribe. A bid guarantee or bid

[[Page 98]]

bond is required only when a performance or payment bond is required.
    (d) Indian preference in employment, training and subcontracting. 
Contracts awarded under the Buy Indian Act are subject to the 
requirements of section 7(b) of the Indian Self-Determination and 
Education Assistance Act 25 U.S.C. 450e, which requires that preference 
be given to Indians in employment, training, and subcontracting. The 
Indian Preference clause set forth in 352.270-2 shall be included in all 
Buy Indian solicitations and resultant contracts. The Indian Preference 
Program clause set forth in 352.270-3 shall be used as specified in 
370.202(b). All requirements set forth in subpart 370.2 which are 
applicable to the instant Buy Indian acquisition shall be followed by 
the contracting officer, e.g., sections 370.204 and 370.205.
    (e) Subcontracting. Not more than 50 percent of the work to be 
performed under a prime contract awarded pursuant to the Buy Indian Act 
shall be subcontracted to other than Indian firms. For this purpose, 
work to be performed does not include the provision of materials, 
supplies, or equipment.
    (f) Wage rates. A determination of the minimum wage rates by the 
Secretary of Labor as required by the Davis-Bacon Act (40 U.S.C. 276a) 
shall be included in all contracts awarded under the Buy Indian Act for 
over $2,000 for construction, alteration, or repair, including painting 
and decorating, of public buildings and public works, except contracts 
with Indian tribes or public nonprofit organizations serving as 
governmental instrumentalities of an Indian tribe. The wage rate 
determination is to be included in contracts with private business 
entities even if they are owned by an Indian tribe or a member of an 
Indian tribe and in connection with joint ventures with, or 
subcontractors of, an Indian tribe or a public nonprofit organization 
serving as a governmental instrumentality of an Indian tribe.



Sec. 370.504  Competition.

    (a) Contracts awarded under the Buy Indian Act are subject to 
competition among Indians or Indian concerns to the maximum extent that 
the Contracting Officer determines is practicable. When competition is 
determined not to be practicable, a Justification for Other than Full 
and Open Competition shall be prepared in accordance with 306.303 and 
subsequently retained in the contract file.
    (b) Solicitations must be synopsized and publicized in FedBizOpps at 
http://www.fedbizopps.gov and copies of the synopses sent to the tribal 
office of the Indian tribal government directly concerned with the 
proposed acquisition as well as to Indian concerns and others having a 
legitimate interest. The synopsis must state that the acquisition is 
restricted to Indian firms under the Buy Indian Act.

[71 FR 76515, Dec. 20, 2006]



Sec. 370.505  Responsibility determinations.

    (a) A contract may be awarded under the Buy Indian Act only if it is 
first determined that the project or function to be contracted for is 
likely to be satisfactorily performed under that contract and the 
project or function is likely to be properly completed or maintained 
under that contract.
    (b) The determination called for by paragraph (a) of this section, 
to be made prior to the award of a contract, will be made in writing by 
the contracting officer reflecting an analysis of the standards set 
forth in FAR 9.104-1.

[[Page 99]]



                  CHAPTER 4--DEPARTMENT OF AGRICULTURE




                           (Parts 400 to 499)

  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
401             Agriculture Acquisition Regulation System...         101
402             Definitions of words and terms..............         106
403             Improper business practices and personal 
                    conflicts of interest...................         106
404             Administrative matters......................         108
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
405             Publicizing contract actions................         110
406             Competition requirements....................         110
407             Acquisition planning........................         111
408             Required sources of supplies and services...         112
409             Contractor qualifications...................         114
410             Market research.............................         116
411             Describing agency needs.....................         116
412             Acquisition of commercial items.............         117
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
413             Simplified acquisition procedures...........         119
414             Sealed bidding..............................         119
415             Contracting by negotiation..................         120
416             Types of contracts..........................         122
417             Special contracting methods.................         123
418             [Reserved]

                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
419             Small business programs.....................         124
420-421

[Reserved]

422             Application of labor laws to Government 
                    acquisitions............................         125
423             Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         127
424             Protection of privacy and freedom of 
                    information.............................         129

[[Page 100]]

425             Foreign acquisition.........................         130
426             Other socioeconomic programs................         131
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
427             Patents, data, and copyrights...............         132
428             Bonds and insurance.........................         132
429             [Reserved]

430             Cost Accounting Standards Administration....         133
431             Contract cost principles and procedures.....         134
432             Contract financing..........................         134
433             Protests, disputes and appeals..............         138
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
434             Major system acquisition....................         140
435             Research and development contracting........         141
436             Construction and architect-engineer 
                    contracts...............................         141
437             Service contracting.........................         144
438             [Reserved]

439             Acquisition of information technology.......         145
440             [Reserved]

441             Acquisition of utility services.............         146
                    SUBCHAPTER G--CONTRACT MANAGEMENT
442             Contract administration.....................         147
443-444         [Reserved]

445             Government property.........................         147
446             Quality assurance...........................         148
447             Transportation..............................         148
448             [Reserved]

449             Termination of contracts....................         149
450             Extraordinary contractual actions...........         149
451             [Reserved]

                     SUBCHAPTER H--CLAUSES AND FORMS
452             Solicitation provisions and contract clauses         151
453             Forms.......................................         161

[[Page 101]]

                          SUBCHAPTER A_GENERAL

           PART 401_AGRICULTURE ACQUISITION REGULATION SYSTEM

Sec.

Sec. 401.000 Scope of part.

               Subpart 401.1_Purpose, Authority, Issuance


Sec. 401.101 Purpose.

Sec. 401.103 Authority.

Sec. 401.104 Applicability.

Sec. 401.105 Issuance.

Sec. 401.105-1 Publication and code arrangement.

Sec. 401.105-2 Arrangement of regulations.

Sec. 401.105-3 Copies.

Sec. 401.106 OMB approval under the Paperwork Reduction Act.

Sec. 401.170 Electronic access to regulatory information.

                      Subpart 401.2_Administration


Sec. 401.201 Maintenance of the FAR.

Sec. 401.201-1 The two councils.

              Subpart 401.3_Agency Acquisition Regulations


Sec. 401.301 Policy.

Sec. 401.304 Agency control and compliance procedures.

Sec. 401.370 Exclusions.

Sec. 401.371 AGAR Advisories.

Sec. 401.372 Departmental directives.

             Subpart 401.4_Deviations From the FAR and AGAR


Sec. 401.402 Policy.

Sec. 401.403 Individual deviations.

Sec. 401.404 Class deviations.

        Subpart 401.6_Contracting Authority and Responsibilities


Sec. 401.601 General.

Sec. 401.602 Contracting officers.

Sec. 401.602-3 Ratification of unauthorized commitments.

Sec. 401.603 Selection, appointment, and termination of appointment.

Sec. 401.603-1 General.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



Sec. 401.000  Scope of part.

    This part presents basic policies and general information about the 
Department of Agriculture's (USDA) Acquisition Regulation, subsequently 
referred to as the AGAR. The AGAR is an integral part of the Federal 
Acquisition Regulations System.

               Subpart 401.1_Purpose, Authority, Issuance



Sec. 401.101  Purpose.

    (a) The AGAR provides for the codification and publication of 
uniform policies and procedures for acquisitions by contracting 
activities within USDA.
    (b) The purpose of the AGAR is to implement the Federal Acquisition 
Regulation (FAR), where further implementation is needed, and to 
supplement the FAR when coverage is needed for subject matter not 
covered in the FAR. The AGAR is not by itself a complete document, as it 
must be used in conjunction with the FAR.



Sec. 401.103  Authority.

    The AGAR and amendments thereto are issued under 5 U.S.C. 301 and 40 
U.S.C. 486(c). The Senior Procurement Executive (SPE) has the delegated 
authority to promulgate Departmental acquisition regulations.



Sec. 401.104  Applicability.

    The FAR and AGAR apply to all USDA acquisitions of supplies and 
services (including construction) which obligate appropriated funds, 
unless otherwise specified in this chapter or excepted by law.



Sec. 401.105  Issuance.



Sec. 401.105-1  Publication and code arrangement.

    (a) The AGAR is codified in the Code of Federal Regulations (CFR) as 
Chapter 4 of Title 48, Federal Acquisition Regulations System, to 
implement and supplement Chapter 1 which constitutes the FAR. Parts 400 
through 499 have been assigned to USDA by the Office of the Federal 
Register.
    (b) The AGAR and its subsequent changes are published in:

[[Page 102]]

    (1) Daily issues of the Federal Register,
    (2) Cumulative form in the CFR, and,
    (3) Electronic form on the USDA Departmental Administration 
Procurement Homepage (see 401.170).
    (c) Section 553(a)(2) of the Administrative Procedure Act, 5 U.S.C. 
553, provides an exception from the standard public rulemaking 
procedures to the extent that the rule involves a matter relating to 
agency management or personnel or to public property, loans, grants, 
benefits, or contracts. In 1971, Secretary of Agriculture Hardin 
announced a voluntary partial waiver from the Administrative Procedure 
Act exception, and USDA agencies generally are required to provide 
notice and an opportunity for public comment on proposed rules (36 FR 
13804, July 24, 1971). The AGAR has been promulgated and may be revised 
from time to time in accordance with the rulemaking procedures of the 
Administrative Procedure Act. The USDA also is required to publish for 
public comment procurement regulations in the Federal Register, pursuant 
to the Office of Federal Procurement Policy Act (41 U.S.C. 418b), and 
FAR 1.301.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]



Sec. 401.105-2  Arrangement of regulations.

    AGAR coverage parallels the FAR in format, arrangement, and 
numbering system. However, subdivisions below the section and subsection 
levels may not always correlate directly to FAR designated paragraphs 
and subparagraphs.



Sec. 401.105-3  Copies.

    Copies of the AGAR published in CFR form may be purchased from the 
Superintendent of Documents, Government Printing Office, Washington, 
D.C. 20402. Requests should reference Chapter 4 of Title 48 CFR.



Sec. 401.106  OMB approval under the Paperwork Reduction Act.

    The following OMB control numbers apply to USDA solicitations and 
specified information collections within the AGAR:

------------------------------------------------------------------------
                                                             OMB Control
                        AGAR segment                             No.
------------------------------------------------------------------------
411.170....................................................    0505-0014
415.2......................................................    0505-0013
436.575....................................................    0505-0011
437.110....................................................    0505-0015
437.270....................................................    0505-0016
452.211-1..................................................    0505-0014
452.215-71.................................................    0505-0013
452.236-75.................................................    0505-0011
452.237-74.................................................    0505-0015
452.237-76.................................................    0505-0016
------------------------------------------------------------------------


[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52674, Sept. 30, 1999]



Sec. 401.170  Electronic access to regulatory information.

    The USDA Departmental Administration Procurement Homepage provides 
access to the AGAR, AGAR amendments (circulars), AGAR Advisories, and 
other USDA procurement policy and guidance in electronic form. The 
Internet address for the Procurement Homepage is URL http://
www.usda.gov/procurement/.

[63 FR 26994, May 15, 1998, as amended at 70 FR 44, Jan. 3, 2005]

                      Subpart 401.2_Administration



Sec. 401.201  Maintenance of the FAR.



Sec. 401.201-1  The two councils.

    (a) USDA's representative on the Civilian Agency Acquisition Council 
is designated by the SPE.
    (b) The Procurement Policy Division will coordinate proposed FAR 
revisions within USDA.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]

              Subpart 401.3_Agency Acquisition Regulations



Sec. 401.301  Policy.

    (a) The SPE, subject to the authorities in 401.103 and FAR 1.301, 
may issue and publish Departmental regulations, that together with the 
FAR, constitute Department-wide policies, procedures, solicitation 
provisions, and contract clauses governing the contracting process or 
otherwise controlling the relationship between USDA (including any of 
its contracting activities) and contractors or prospective contractors.

[[Page 103]]

    (b) Each designated head of a contracting activity (HCA) is 
authorized to issue or authorize the issuance of, at any organizational 
level, internal guidance which does not have a significant effect beyond 
the internal operating procedures of the activity, or a significant cost 
or administrative impact on offerors or contractors. Internal guidance 
issued by contracting activities will not be published in the Federal 
Register. HCA's shall ensure that the guidance, procedures, or 
instructions issued--
    (1) Are consistent with the policies and procedures contained in 
this chapter;
    (2) Follow the format, arrangement, and numbering system of this 
chapter to the extent practicable;
    (3) Contain no material which duplicates, paraphrases, or is 
inconsistent with this chapter; and
    (4) Are numbered and identified by use of alphabetical suffixes to 
the chapter number as follows:

4A [Reserved]
4B Agricultural Research Service.
4C Farm Service Agency.
4D Rural Development (mission area).
4E Food Safety and Inspection Service.
4F [Reserved]
4G Forest Service.
4H [Reserved]
4I Natural Resources Conservation Service.
4J [Reserved]
4K Food and Nutrition Service.
4L Animal and Plant Health Inspection Service.
4M [Reserved]
4N Departmental Administration.
4O-4P [Reserved]
4R Office of Inspector General.
4S [Reserved]

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]



Sec. 401.304  Agency control and compliance procedures.

    (a) The AGAR System is under the direct oversight and control of the 
SPE, who is responsible for review and issuance of all Department-wide 
acquisition regulations published in the Federal Register to assure 
compliance with FAR part 1.
    (b) The SPE is also responsible for review and issuance of 
unpublished, Department-wide internal guidance under the AGAR System.
    (c) HCA's are responsible for establishment and implementation of 
formal procedures for oversight and control of unpublished internal 
guidance issued within the contracting activity to implement FAR or AGAR 
requirements. These procedures shall be subject to the review and 
approval by the SPE.
    (d) The SPE is responsible for evaluating coverage under the AGAR 
System to determine applicability to other agencies and for recommending 
coverage to the FAR Secretariat for inclusion in the FAR.
    (e) Recommendations for revision of existing FAR coverage or new FAR 
coverage shall be submitted by the HCA to the SPE for further action.



Sec. 401.370  Exclusions.

    Subject to the policies of FAR subpart 1.3, certain USDA acquisition 
policies and procedures may be excluded from the AGAR under 
appropriately justified circumstances, such as:
    (a) Subject matter which is effective for a period less than 12 
months.
    (b) Subject matter which is instituted on an experimental basis for 
a reasonable period.
    (c) Acquisition procedures instituted on an interim basis to comply 
with the requirements of statute, regulation, Executive Order, OMB 
Circular, or OFPP Policy Letter.



Sec. 401.371  AGAR Advisories.

    The SPE may issue AGAR Advisories, consistent with the policies of 
the FAR and the AGAR, for the following purposes:
    (a) To communicate Department-wide policy and/or procedural guidance 
to contracting activities;
    (b) To delegate to procurement officials authority to make 
determinations or to take action to implement the policies of the FAR or 
the AGAR; and,
    (c) To establish internal policy and procedures on an interim basis, 
prior to incorporation in the AGAR or in a Departmental Directive.
    (d) AGAR Advisories are only available in electronic format on the 
USDA

[[Page 104]]

Procurement Web site at http://www.usda.gov/procurement/.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]



Sec. 401.372  Departmental directives.

    Subject to the policies of FAR 1.3, USDA from time to time may issue 
internal directives to establish procedures, standards, guidance, or 
methods of performing duties, functions, or operations. Such directives 
include Departmental Regulations (DR's), Departmental Notices, and 
Secretary's Memoranda.

             Subpart 401.4_Deviations From the FAR and AGAR



Sec. 401.402  Policy.

    Requests for authority to deviate from the provisions of the FAR or 
the AGAR shall be submitted in writing as far in advance as the 
exigencies of the situation will permit. Each request for deviation 
shall contain the following:
    (a) A statement of the deviation desired, including identification 
of the specific paragraph number(s) of the FAR and AGAR;
    (b) The reason why the deviation is considered necessary or would be 
in the best interest of the Government;
    (c) If applicable, the name of the contractor and identification of 
the contract affected;
    (d) A statement as to whether the deviation has been requested 
previously and, if so, circumstances of the previous request;
    (e) A description of the intended effect of the deviation;
    (f) A statement of the period of time for which the deviation is 
needed; and
    (g) Any pertinent background information which will contribute to a 
full understanding of the desired deviation.



Sec. 401.403  Individual deviations.

    In individual cases, deviations from either the FAR or the AGAR will 
be authorized only when essential to effect a necessary acquisition or 
where special circumstances make such deviations clearly in the best 
interest of the Government. Except for cost principles, HCA's may 
approve individual deviations from the AGAR, after coordinating with the 
General Counsel and the SPE. No deviations from the FAR or AGAR may be 
authorized at the contracting office level. A copy of each deviation and 
its supporting documentation shall be provided to the SPE. Deviations 
from the FAR shall not be made unless such action is authorized by the 
SPE after consultation with the Office of the General Counsel and any 
other appropriate office, on the basis of a written justification 
stating clearly the special circumstances involved.



Sec. 401.404  Class deviations.

    Where deviations from the FAR or AGAR are considered necessary for 
classes of contracts, requests for authority to deviate shall be 
submitted in writing to the SPE for approval. The SPE may authorize 
class deviations from the FAR without consulting the Chairperson of the 
Civilian Agency Acquisition Council where urgency precludes 
consultation. The SPE shall subsequently inform the Chairperson of the 
Civilian Agency Acquisition Council of the deviation including the 
circumstances under which it was required.

        Subpart 401.6_Contracting Authority and Responsibilities



Sec. 401.601  General.

    (a) The authority and responsibility vested in the Secretary to 
manage USDA's acquisition function is delegated through the Assistant 
Secretary for Administration to the SPE. This broad authority includes, 
but is not limited to, the following responsibilities:
    (1) Prescribing and publishing Departmental acquisition policies, 
regulations, and procedures.
    (2) Taking any necessary actions consistent with policies, 
regulations, and procedures with respect to purchases, contracts, 
leases, and other transactions.
    (3) Designating contracting officers.
    (4) Establishing clear lines of contracting authority.
    (5) Evaluating and monitoring the performance of USDA's acquisition 
system.

[[Page 105]]

    (6) Managing and enhancing career development of the contracting 
work force.
    (7) Participating in the development of Government-wide acquisition 
policies, regulations, and standards; and determining specific areas 
where government-wide performance standards should be established and 
applied.
    (8) Determining areas of Department-unique standards and developing 
unique Department-wide standards.
    (9) Certifying to the Secretary that the acquisition system meets 
approved standards.
    (b) The SPE may delegate contracting authority to the Heads of 
Contracting Activities (HCA's) and the responsibility to manage their 
acquisition function.
    (c) Unless prohibited by the FAR, the AGAR, or by other applicable 
statutes and regulations, the SPE may redelegate to HCA's the authority 
to make determinations as the agency head in order to implement the 
policies and procedures of the FAR. Such delegations shall be in 
writing, but need not be published.
    (d) Unless prohibited by the FAR, the AGAR, or by other applicable 
statutes or regulations, each HCA may designate one individual from the 
contracting activity to carry out the functions of the HCA (HCAD). The 
HCAD may exercise all authority delegated to the HCA.



Sec. 401.602  Contracting officers.



Sec. 401.602-3  Ratification of unauthorized commitments.

    (a) Definitions. Ratification, as used in this section, means the 
signed, documented action taken by an authorized official to approve and 
sanction a previously unauthorized commitment.
    Unauthorized commitment, as used in this section, means an agreement 
made by a Government representative who lacked the authority to enter 
into a contract on behalf of the Government.
    (b) Policy. The HCA may delegate ratification authority to the chief 
of the contracting office.
    (c) Procedure. Whenever an official of the cognizant contracting 
activity who is authorized to ratify unauthorized commitments learns 
that a person or firm has assumed work as a result of an unauthorized 
commitment, that official shall take the following actions:
    (1) Immediately inform any person who is performing work as a result 
of an unauthorized commitment that the work is being performed at that 
person's risk;
    (2) Inform the individual who made the unauthorized commitment of 
the seriousness of the act and the possible consequences;
    (3) Ensure that the individual who made the unauthorized commitment 
furnishes all records and documents concerning the commitment and a 
complete, written statement of facts, including, but not limited to: a 
statement as to why a contracting officer was not used; why the vendor 
was selected and a list of sources considered; a description of work to 
be performed or products to be furnished; the estimated or agreed price; 
whether an appropriation is available for the work; and whether 
performance has begun. Under exceptional circumstances, such as when the 
individual who made the unauthorized commitment is no longer available 
to attest to the circumstances of the unauthorized commitment, the 
ratifying official may waive these requirements; and
    (4) Decide whether ratification is proper and proceed as follows:
    (i) If ratification is not justifiable, provide the cognizant 
program office, contracting office, and the unauthorized contractor with 
an explanation of the decision not to ratify.
    (ii) If ratification appears adequately justified, ratify the action 
and retain or assign the contract to a successor contracting officer if 
necessary.
    (iii) Maintain related approval, decisional, and background 
documents in the contract file for audit purposes.
    (iv) Notify the cognizant program supervisor or line officer about 
the final disposition of the case; the notification may include a 
recommendation that the unauthorized commitment should be further 
considered a violation of USDA's employee conduct regulations.

[[Page 106]]



Sec. 401.603  Selection, appointment, and termination of appointment.



Sec. 401.603-1  General.

    An HCA may delegate contracting authority to the extent authorized 
by the SPE in a general delegation of acquisition authority, by 
appointing qualified individuals as contracting officers, in accordance 
with the USDA Contracting Officer Warrant System, Departmental 
Regulation 5001-1.

                 PART 402_DEFINITIONS OF WORDS AND TERMS

Sec.

Sec. 402.000 Scope of part.

                        Subpart 402.1_Definitions


Sec. 402.101 Definitions.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



Sec. 402.000  Scope of part.

    As used throughout this chapter, the following words and terms are 
used as defined in this subpart unless the context in which they are 
used clearly requires a different meaning, or a different definition is 
prescribed for a particular part or portion of a part.

                        Subpart 402.1_Definitions



Sec. 402.101  Definitions.

    Acquisition official means an individual who has been delegated 
authority to manage or to exercise acquisition functions and 
responsibilities.
    Agency head or Head of the Agency means the Secretary of 
Agriculture, Deputy Secretary, or the Assistant Secretary for 
Administration.
    Head of the contracting activity (HCA) means the official who has 
overall responsibility for managing the contracting activity (i.e., 
Chief, Forest Service; Administrator, Agricultural Research Service; 
etc.), or the individual designated by such an official to carry out the 
functions of the HCA.
    Senior Procurement Executive (SPE) means the agency official 
appointed as such by the head of the agency pursuant to Executive Order 
12931. The Director, Office of Procurement and Property Management, has 
been designated as the USDA SPE.

[61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26994, May 15, 1998]

 PART 403_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 403.1_Safeguards

Sec.

Sec. 403.101 Standards of conduct.

Sec. 403.101-3 Agency regulations.

Sec. 403.104 Procurement integrity.

Sec. 403.104-5 [Reserved]

Sec. 403.104-7 Violations or possible violations.

       Subpart 403.2_Contractor Gratuities to Government Personnel


Sec. 403.203 Reporting suspected violations of the gratuities clause.

Sec. 403.204 Treatment of violations.

         Subpart 403.3_Reports of Suspected Antitrust Violations


Sec. 403.303 Reporting suspected antitrust violations.

                      Subpart 403.4_Contingent Fees


Sec. 403.405 Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

             Subpart 403.5_Other Improper Business Practices


Sec. 403.502 Subcontractor kickbacks.

Subpart 403.6_Contracts With Government Employees or Organizations Owned 
                          or Controlled by Them


Sec. 403.602 Exceptions.

Sec. 403.603 Responsibilities of the contracting officer.

 Subpart 403.8_Limitation on the Payment of Funds To Influence Federal 
                              Transactions


Sec. 403.806 Processing suspected violations

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

[[Page 107]]

                        Subpart 403.1_Safeguards



Sec. 403.101  Standards of conduct.



Sec. 403.101-3  Agency regulations.

    (a) The standards of conduct for USDA procurement officials are the 
uniform standards established by the Office of Government Ethics in 5 
CFR Part 2635, Standards of Ethical Conduct for Employees of the 
Executive Branch, and FAR 3.104, Procurement integrity.
    (b) Procurement officials and other employees who require advice 
concerning the application of standards of conduct to any acquisition 
issue shall obtain ethics advisory opinions from ethics advisory 
officials in their agency personnel offices.



Sec. 403.104  Procurement integrity.



Sec. 403.104-5  [Reserved]



Sec. 403.104-7  Violations or possible violations.

    The contracting officer shall forward information concerning any 
violation or possible violation of the Procurement Integrity Act (41 
U.S.C. 423) to the chief of the contracting office.

[61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26995, May 15, 1998. 
Redesignated and amended at 70 FR 44, Jan. 3, 2005]

       Subpart 403.2_Contractor Gratuities to Government Personnel



Sec. 403.203  Reporting suspected violations of the gratuities clause.

    A suspected violation of the contract clause, FAR 52.203-3, 
Gratuities, shall be reported immediately to the cognizant contracting 
officer in writing, stating the circumstances surrounding the 
incident(s), the date(s), and names of all parties involved. The 
contracting officer shall review the report for completeness, add any 
additional information deemed necessary and a recommendation for action, 
and submit the report to the HCA.



Sec. 403.204  Treatment of violations.

    The HCA shall review the report and consult with the Offices of 
General Counsel and Inspector General to determine whether further 
action should be pursued. If it is found that the facts and 
circumstances warrant further action, the HCA shall give the contractor 
a formal written notice which summarizes the reported violation and 
affords the contractor the opportunity to make a written or oral 
response within a reasonable, specified period after receipt of the 
notice. The notice shall be sent by certified mail with return receipt 
requested. Oral presentations shall follow the procedures outlined in 
FAR 3.204(b). The HCA shall furnish copies of any adverse determination 
to the contracting officer and the Department Debarring Officer for 
their subsequent considerations under FAR 3.204(c)(1) and (2), 
respectively.

         Subpart 403.3_Reports of Suspected Antitrust Violations



Sec. 403.303  Reporting suspected antitrust violations.

    Contracting officers shall report the circumstances of suspected 
violations of antitrust laws to the Office of Inspector General in 
accordance with procedures in Departmental Regulations (1700 series).

                      Subpart 403.4_Contingent Fees



Sec. 403.405  Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

    (a) A suspected misrepresentation or violation of the Covenant 
Against Contingent Fees shall be documented in writing by the 
contracting officer and reported immediately to the chief of the 
contracting office. The chief of the contracting office shall determine 
if a violation has occurred and report any violation to the Office of 
Inspector General. The chief of the contracting office shall take action 
in accordance with FAR 3.405(b).
    (b) If the chief of the contracting office decides to refer the case 
to the Department of Justice, it should be referred through the Office 
of Inspector General with a copy of the report and referral submitted 
through the HCA to the Senior Procurement Executive.

[61 FR 53646, Oct. 15, 1996. Redesignated and amended at 70 FR 44, Jan. 
3, 2005]

[[Page 108]]

             Subpart 403.5_Other Improper Business Practices



Sec. 403.502  Subcontractor kickbacks.

    Contracting officers shall report the circumstances of suspected 
violations of the Anti-Kickback Act (41 U.S.C. 51-58) to the Office of 
Inspector General in accordance with procedures in Departmental 
Regulations (1700 series).

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 44, Jan. 3, 2005]

Subpart 403.6_Contracts With Government Employees or Organizations Owned 
                          or Controlled by Them



Sec. 403.602  Exceptions.

    The HCA is authorized to accept a contract from the policy in FAR 
3.601.



Sec. 403.603  Responsibilities of the contracting officer.

    The contracting officer, when requesting authorization under 
403.602, shall prepare a written determination and findings for the 
signature of the HCA. The determination shall document compliance with 
FAR 3.603, specifying the compelling reason(s) for award, and shall be 
placed in the contract file.

 Subpart 403.8_Limitation on the Payment of Funds To Influence Federal 
                              Transactions



Sec. 403.806  Processing suspected violations.

    Suspected violations of the requirements of 31 U.S.C. 1352 shall be 
referred to the Office of Inspector General in accordance with 
procedures in Departmental Regulations (1700 series).

                     PART 404_ADMINISTRATIVE MATTERS

                   Subpart 404.2_Contract Distribution

Sec.

Sec. 404.203 Taxpayer identification information.

    Subpart 404.4_Safeguarding Classified Information Within Industry


Sec. 404.403 Responsibilities of contracting officers.

                    Subpart 404.6_Contract Reporting


Sec. 404.601 [Reserved]

Sec. 404.602 Federal Procurement Data System.

                 Subpart 404.8_Government Contract Files


Sec. 404.870 Document numbering system.

             Subpart 404.11_Central Contractor Registration


Sec. 404.1103 Procedures.

                   Subpart 404.70_Precontract Notices


Sec. 404.7001 Solicitation provision.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

                   Subpart 404.2_Contract Distribution



Sec. 404.203  Taxpayer identification information.

    (a) If the contractor furnishes taxpayer identification number (TIN) 
and type of organization information pursuant to solicitation provision 
52.204-3 or 52.212-3, and the USDA Office of the Chief Financial 
Officer, Controller Operations Division, New Orleans will be the payment 
office, that information will be entered into the Foundation Financial 
Information System (FFIS) in accordance with FFIS Vendor Table 
Maintenance Procedures set forth in FFIS Bulletins issued by the Office 
of the Chief Financial Officer and AGAR Advisories issued by the Office 
of Procurement and Property Management.
    (b) Separate submission of the TIN or type of organization 
information, in accordance with 52.204-3 or 52.212-3, is not required 
for contractors registered in the Central Contractor Registration (CCR) 
database.

[70 FR 44, Jan. 3, 2005]

[[Page 109]]

    Subpart 404.4_Safeguarding Classified Information Within Industry



Sec. 404.403  Responsibilities of contracting officers.

    When a proposed solicitation is likely to require access to 
classified information, the contracting officer shall consult with the 
Information Security Staff, Personnel and Document Security Division, 
Office of Procurement and Property Management, regarding the procedures 
that must be followed.

[70 FR 44, Jan. 3, 2005]

                    Subpart 404.6_Contract Reporting



Sec. 404.601  [Reserved]



Sec. 404.602  Federal Procurement Data System.

    (a) Contracting activities shall report contract actions into the 
Federal Procurement Data System in accordance with the instructions 
issued or distributed by the SPE.
    (b) The unique identifier for each contract action reported to the 
Federal Procurement Data System shall begin with the two-letter USDA 
Agency Prefix ``AG''.

[70 FR 44, Jan. 3, 2005]

                 Subpart 404.8_Government Contract Files



Sec. 404.870  Document numbering system.

    The SPE shall issue AGAR Advisories to establish and maintain a 
numbering system for USDA contracts, modifications, and delivery/task 
orders. USDA contracting offices shall number contracts, modifications, 
and orders in accordance with this numbering system.

[70 FR 44, Jan. 3, 2005]

             Subpart 404.11_Central Contractor Registration



Sec. 404.1103  Procedures.

    (a) Contracting officers and other USDA employees shall not enter 
information into the Central Contractor Registration (CCR) database on 
behalf of prospective contractors. Prospective contractors who are 
unable to register on-line at the CCR Web site should be advised to 
submit a written application to CCR for registration into the CCR 
database. USDA employees may assist prospective contractors by 
downloading the registration template, CCR handbook, and other 
information from the CCR Web site and providing copies of that material 
to requesters. Written applications for registration may be submitted to 
Department of Defense Central Contractor Registration, 74 Washington 
Ave., Suite 7, Battle Creek, MI 49017-3084.
    (b) Verification that the prospective contractor is registered in 
the CCR database shall be done via the CCR Internet Web site http://
www.ccr.gov. This verification process using the CCR Web site applies 
both to acquisitions executed using USDA legacy procurement systems and 
the USDA Integrated Acquisition System.
    (c) AGAR Advisories issued by the Office of Procurement and Property 
Management will address internal procedures for integration of 
contractor information in the CCR database with the USDA FFIS payment 
system.

[70 FR 44, Jan. 3, 2005]

                   Subpart 404.70_Precontract Notices



Sec. 404.7001  Solicitation provision.

    The contracting officer shall insert the provision at 452.204-70, 
Inquiries, in all solicitations.

[[Page 110]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                  PART 405_PUBLICIZING CONTRACT ACTIONS

                Subpart 405.3_Synopses of Contract Awards

Sec.

Sec. 405.303 Announcement of contract awards.

                  Subpart 405.4_Release of Information


Sec. 405.403 Requests from Members of Congress.

Sec. 405.404 Release of long-range acquisition estimates.

Sec. 405.404-1 Release procedures.

                    Subpart 405.5_Paid Advertisements


Sec. 405.502 Authority.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

                Subpart 405.3_Synopses of Contract Awards



Sec. 405.303  Announcement of contract awards.

    Contracting officers shall make information available on any 
contract award with an estimated total value over $1 million (including 
options) to their agency congressional liaison office in sufficient time 
for the agency to announce it by 5:00 p.m. Washington, DC time on the 
day of award. The agency congressional liaison office shall, concurrent 
with the public announcement, provide the award announcement information 
to the USDA Congressional Relations Office.

                  Subpart 405.4_Release of Information



Sec. 405.403  Requests from Members of Congress.

    The head of the contracting activity (HCA) is the agency head 
designee pursuant to FAR 5.403.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 45, Jan. 3, 2005]



Sec. 405.404  Release of long-range acquisition estimates.



Sec. 405.404-1  Release procedures.

    (a) HCA's shall establish written procedures to control the release 
of long-range acquisition estimates, as authorized under FAR 5.404-1.
    (b) Classified information shall not be released without the 
approval of the Information Security Staff, Personnel and Document 
Security Division, Office of Procurement and Property Management. 
Departmental Manuals and Regulations (3400 series) contain guidance on 
classified information.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 45, Jan. 3, 2005]

                    Subpart 405.5_Paid Advertisements



Sec. 405.502  Authority.

    (a) The authority vested in the agency head to authorize publication 
of paid advertisements in newspapers (44 U.S.C. 3702) is delegated, with 
power of redelegation, to HCA's. HCA redelegation of this authority 
shall be in writing.
    (b) Policies and procedures regarding prior authorization required 
for media other than newspapers are contained in USDA Departmental 
Regulations 1400 series.

                    PART 406_COMPETITION REQUIREMENTS

   Subpart 406.2_Full and Open Competition After Exclusion of Sources

Sec.

Sec. 406.202 Establishing or maintaining alternative sources.

           Subpart 406.3_Other Than Full and Open Competition


Sec. 406.302 Circumstances permitting other than full and open 
          competition.

Sec. 406.302-70 Otherwise authorized by law.

                   Subpart 406.5_Competition Advocates


Sec. 406.501 Requirements.


[[Page 111]]


    Authority: 5 U.S.C. and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

   Subpart 406.2_Full and Open Competition After Exclusion of Sources



Sec. 406.202  Establishing or maintaining alternative sources.

    The Senior Procurement Executive is authorized to make 
determinations pursuant to FAR 6.202(a) and sign the determination and 
findings required by FAR 6.202(b).

           Subpart 406.3_Other Than Full and Open Competition



Sec. 406.302  Circumstances permitting other than full and open 
          competition.



Sec. 406.302-70  Otherwise authorized by law.

    (a) Authority. Section 1472 of the National Agricultural Research, 
Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3318) (the Act) 
authorizes the Secretary of Agriculture to award contracts, without 
competition, to further research, extension, or teaching programs in the 
food and agricultural sciences.
    (b) Limitations. The use of this authority is limited to those 
instances where it can be determined that contracting without full and 
open competition is in the best interest of the Government and necessary 
to the accomplishment of the research, extension, or teaching program. 
Therefore:
    (1) Contracts under the authority of the Act shall be awarded on a 
competitive basis to the maximum practicable extent.
    (2) When full and open competition is not deemed appropriate, the 
contracting officer shall make a written justification on a case-by-case 
basis in accordance with procedures in FAR 6.303 and 6.304.

                   Subpart 406.5_Competition Advocates



Sec. 406.501  Requirements.

    (a) The Chief, Procurement Policy Division, Office of Procurement 
and Property Management, has been designated as the Competition Advocate 
for USDA.
    (b) Each HCA shall designate a competition advocate for the 
contracting activity. The HCA shall forward a copy of the designation 
memorandum to the Competition Advocate for USDA.

[70 FR 45, Jan. 3, 2005]

                      PART 407_ACQUISITION PLANNING

                     Subpart 407.1_Acquisition Plans

Sec.

Sec. 407.103 Agency-head responsibilities.

Sec. 407.170 Advance acquisition plans.

Subpart 407.3 [Reserved]

             Subpart 407.5_Inherently Governmental Functions


Sec. 407.503 Policy.

    Authority: 5 U.S.C. 301 and 40 U.S.C.

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

                     Subpart 407.1_Acquisition Plans



Sec. 407.103  Agency-head responsibilities.

    Heads of Contracting Activities (HCA's) shall develop procedures to 
comply with FAR 7.103.



Sec. 407.170  Advance acquisition plans.

    Each HCA shall maintain an advance acquisition planning system.

[70 FR 45, Jan. 3, 2005]

Subpart 407.3 [Reserved]

             Subpart 407.5_Inherently Governmental Functions



Sec. 407.503  Policy.

    (a) HCA's shall establish procedures to ensure that requesting 
activities

[[Page 112]]

provide the written determination required by FAR 7.503(e), when 
submitting requests for procurement of services.
    (b) In the event of a disagreement as to whether the functions to be 
performed are inherently governmental, the HCA may refer the matter to 
the Senior Procurement Executive (SPE) for resolution. When submitting 
disagreements to the SPE for resolution the HCA shall provide a summary 
of the areas of disagreement, supported by the following:
    (1) The HCA's assessment of whether the services are ``inherently 
governmental'';
    (2) The basis for that assessment (include references to the 
definition and policy in FAR subpart 7.5 and/or Office of Federal 
Procurement Policy letter 92-1);
    (3) A copy of the statement of work; and,
    (4) The requesting activity's written determination in accordance 
with FAR 7.503(e).
    (c) Such disagreements shall be resolved prior to issuance of the 
solicitation.

[61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26995, May 15, 1998]

           PART 408_REQUIRED SOURCES OF SUPPLIES AND SERVICES

                 Subpart 408.4_Federal Supply Schedules

Sec.

Sec. 408.404 Using schedules.

Sec. 408.404-3 Requests for waivers.

 Subpart 408.7_Acquisition From Nonprofit Agencies Employing People Who 
                     Are Blind or Severely Disabled


Sec. 408.701 Definitions.

Sec. 408.705 Procedures.

Sec. 408.705-2 Direct order process.

Sec. 408.705-3 Allocation process.

Sec. 408.705-4 Compliance with orders.

Sec. 408.706 Purchase exemptions.

Sec. 408.707 Prices.

Sec. 408.711 Quality complaints.

Sec. 408.712 Specification changes.

Sec. 408.714 Communications with the central nonprofit agencies and the 
          Committee.

       Subpart 408.8_Acquisition of Printing and Related Supplies


Sec. 408.802 Policy.

                Subpart 408.11_Leasing of Motor Vehicles


Sec. 408.1103 Contract requirements.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

                 Subpart 408.4_Federal Supply Schedules



Sec. 408.404  Using schedules.



Sec. 408.404-3  Requests for waivers.

    A copy of the request for a waiver and the approval shall be placed 
in the contract file to support the acquisition of items off schedule.

 Subpart 408.7_Acquisition From Nonprofit Agencies Employing People Who 
                     Are Blind or Severely Disabled

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

    Editorial Note: Nomenclature changes to subpart 408.7 appear at 70 
FR 45, Jan. 3, 2005.



Sec. 408.701  Definitions.

    Committee Member is the Presidential appointee representing USDA as 
a member of the Committee for Purchase from People Who Are Blind or 
Severely Disabled.
    Organization head is the Under Secretary or Assistant Secretary of a 
mission area or the head of a USDA staff office.

[70 FR 45, Jan. 3, 2005]



Sec. 408.705  Procedures.

    (a) The organization head shall appoint one person as Javits-Wagner-
O'Day Act (JWOD) Liaison to represent the organization and to coordinate 
the organization's actions with the Committee Member.
    (b) JWOD advocates may represent more than one organization. 
Liaisons need not be acquisition officials.
    (c) The organization head shall issue and maintain a performance 
plan to promote and enhance the organization's acquisitions from JWOD 
participating nonprofit agencies.
    (d) The performance plan shall:

[[Page 113]]

    (1) Announce the organization's support for the JWOD Act;
    (2) Establish a promotion program for the products and services 
provided by the JWOD participating nonprofit agencies;
    (3) Provide for the JWOD Liaison's role in acquisition planning;
    (4) Establish measurable program goals for growth or other 
accomplishment in the organization's JWOD program actions; and
    (5) Establish an awards program for successful participation in the 
JWOD program.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 45, Jan. 3, 2005]



Sec. 408.705-2  Direct order process.

    (a) The chief of a contracting office may apply to a central 
nonprofit agency for authorization to order specific supplies or 
services directly from a JWOD participating nonprofit agency.
    (b) A copy of the application should be provided to the JWOD Liaison 
who will inform the USDA Committee Member.



Sec. 408.705-3  Allocation process.

    (a) The chief of a contracting office may apply to a central 
nonprofit agency for a production allocation of specific supplies or 
services to a JWOD participating nonprofit agency.
    (b) A copy of the application should be provided to the JWOD Liaison 
who will inform the USDA Committee Member.



Sec. 408.705-4  Compliance with orders.

    Prior to attempting to resolve a failure to perform by a 
participating nonprofit agency with the Committee, the chief of the 
contracting office should provide advance notice to the JWOD Liaison who 
will inform the USDA Committee Member.



Sec. 408.706  Purchase exemptions.

    Prior to applying to the Committee for a purchase exemption, the 
chief of the contracting office should provide advance notice to the 
JWOD Liaison who will inform the USDA Committee Member.



Sec. 408.707  Prices.

    Prior to applying for a price revision, the chief of the contracting 
office should provide advance notice to the JWOD Liaison who will inform 
the USDA Committee Member.



Sec. 408.711  Quality complaints.

    Prior to attempting to resolve a complaint regarding the quality of 
goods or services provided by participating nonprofit agency with the 
Committee, the chief of the contracting office should provide advance 
notice to the JWOD Liaison who will inform the USDA Committee Member.



Sec. 408.712  Specification changes.

    Prior to providing 90-days advance notification to the Committee on 
actions that affect supplies and services on the Procurement List, the 
chief of the contracting office should provide advance notice to the 
JWOD Liaison who will inform the USDA Committee Member.



Sec. 408.714  Communications with the central nonprofit agencies and the 
          Committee.

    Any matter requiring referral to the Committee shall be provided to 
the JWOD Liaison who will coordinate the matter with the Committee 
Member.

       Subpart 408.8_Acquisition of Printing and Related Supplies



Sec. 408.802  Policy.

    (a) The Director, Office of Communications (OC) has been designated 
as the central printing authority in USDA, with the authority to 
represent the USDA before the Joint Committee on Printing (JCP), the 
Government Printing Office, and other Federal and State agencies on all 
matters related to printing.
    (b) Prior to contracting for any of the items defined in FAR 8.801, 
the contracting officer shall verify that the requisite approval has 
been received by the publication liaison officer or requisitioner.
    (c) The approval from OC or the approval authority designated by OC 
shall be maintained in the contract file.

[[Page 114]]

                Subpart 408.11_Leasing of Motor Vehicles



Sec. 408.1103  Contract requirements.

    If the requirement includes the need for the vendor to provide 
operational maintenance such as fueling, lubrication, or other fluid 
changes or replenishment, the contracting officer shall include in the 
contract:
    (1) A requirement for the use of fluids and lubricants containing 
the maximum available amounts of recovered materials, and alternative 
fuels whenever available; and
    (2) A preference for retreaded tires meeting the Federal retread 
specifications, tires with the maximum recovered material content, or 
retreading services for the tires on the vehicle.

[70 FR 45, Jan. 3, 2005]

                   PART 409_CONTRACTOR QUALIFICATIONS

          Subpart 409.4_Debarment, Suspension and Ineligibility

Sec.

Sec. 409.403 Definitions.

Sec. 409.404 List of parties excluded from Federal procurement and 
          nonprocurement programs.

Sec. 409.405 Effect of listing.

Sec. 409.405-1 Continuation of current contracts.

Sec. 409.405-2 Restrictions on subcontracting.

Sec. 409.406 Debarment.

Sec. 409.406-3 Procedures.

Sec. 409.407 Suspension.

Sec. 409.407-3 Procedures.

    Subpart 409.5_Organizational and Consultant Conflicts of Interest


Sec. 409.503 Waiver.

    Authority: 40 U.S.C. 121, 41 U.S.C. 421.

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

          Subpart 409.4_Debarment, Suspension and Ineligibility



Sec. 409.403  Definitions.

    Debarring official. Pursuant to the Secretary's delegations of 
authority in 7 CFR 2.24, the Senior Procurement Executive (SPE) is 
designated as the debarring official (Department Debarring Officer) with 
the following exceptions:
    (a) For commodity contracts awarded on behalf of the Commodity 
Credit Corporation (CCC), the Executive Vice President, CCC, or his 
designee is designated as the debarring official pursuant to 7 CFR part 
1407.
    (b) For contracts awarded under the School Lunch and Surplus Removal 
Programs (42 U.S.C. 1755 and 7 U.S.C. 612c), the Department Debarring 
Officer has delegated debarring authority to the Agricultural Marketing 
Service (AMS).

[63 FR 26995, May 15, 1998]



Sec. 409.404  List of parties excluded from Federal procurement and 

nonprocurement programs.

    The Department Debarring Officer is USDA's single point of contact 
with GSA for debarment and suspension actions taken under this subpart. 
The debarring official for AMS shall notify the Department Debarring 
Officer of each debarment and suspension action by promptly submitting a 
copy of the debarment or suspension notice and any later changes to the 
debarment or suspension status. The Department Debarring Officer will 
forward a copy of each notice to GSA for inclusion in the Government-
wide list.



Sec. 409.405  Effect of listing.

    Compelling reasons are considered to be present where failure to 
contract with the debarred or suspended contractor would seriously harm 
the agency's programs and prevent accomplishment of mission 
requirements. The SPE is authorized to make the determinations under FAR 
9.405. Requests for such determinations shall be submitted through the 
head of the contracting activity (HCA) to the SPE.



Sec. 409.405-1  Continuation of current contracts.

    The HCA is authorized to make the determinations under FAR 9.405-1.



Sec. 409.405-2  Restrictions on subcontracting.

    The HCA is authorized to approve subcontracts with debarred or 
suspended subcontractors under FAR 9.405-2.

[[Page 115]]



Sec. 409.406  Debarment.



Sec. 409.406-3  Procedures.

    (a) Investigation and referral. When a contracting officer becomes 
aware of possible irregularities or any information which may be 
sufficient cause for debarment, the case shall be immediately referred 
through the HCA to the debarring official. The case must be accompanied 
by a complete statement of the facts (including a copy of any criminal 
indictments, if applicable) along with a recommendation for action. 
Where the statement of facts indicates the irregularities to be possible 
criminal offenses, or for any other reason further investigation is 
considered necessary, the matter shall be referred to the HCA who should 
consult with the Office of Inspector General to determine if further 
investigation is required prior to referring to the debarring official.
    (b) Decision-making process. If, after reviewing the recommendations 
and consulting with the Office of Inspector General and Office of the 
General Counsel, as appropriate, the debarring official determines 
debarment is justified, the debarring official shall initiate the 
proposed debarment in accordance with FAR 9.406-3(c) and notify the HCA 
of the action taken.
    (c) Fact-finding proceeding. For actions listed under FAR 9.406-
3(b)(2), the contractor shall be given the opportunity to appear at an 
informal hearing. The hearing should be held at a location and time that 
is convenient to the parties concerned, if at all possible. The 
contractor and any specifically named affiliates may be represented by 
counsel or any duly authorized representative. Witnesses may be called 
by either party. The proceedings shall be conducted expeditiously and in 
such a manner that each party will have an opportunity to present all 
information considered pertinent to the proposed debarment. The 
contractor shall be provided a copy of a transcript of the proceedings 
under the conditions established in FAR 9.406-3(b)(2)(ii).



Sec. 409.407  Suspension.



Sec. 409.407-3  Procedures.

    (a) Investigation and referral. When a contracting officer becomes 
aware of possible irregularities or any information which may be 
sufficient cause for suspension, the case shall be immediately referred 
through the HCA to the debarring official. The case must be accompanied 
by a complete statement of the facts along with a recommendation for 
action. Where the statement of facts indicates the irregularities to be 
possible criminal offenses, or for any other reason further 
investigation is considered necessary, the matter shall be referred to 
the HCA who should consult with the Office of Inspector General to 
determine if further investigation is required prior to referring it to 
the debarring official.
    (b) Decision-making process. If, after reviewing the recommendations 
and consulting with the Office of Inspector General and Office of the 
General Counsel, as appropriate, the debarring official determines 
suspension is justified, the debarring official shall initiate the 
proposed suspension in accordance with FAR 9.407-3(c) and notify the HCA 
of the action taken.
    (c) Fact-finding proceedings. For actions listed under FAR 9.407-
3(b)(2), the contractor shall be given the opportunity to appear at an 
informal hearing, similar in nature to the hearing for debarments as 
discussed in 409.406-3(c).

    Subpart 409.5_Organizational and Consultant Conflicts of Interest



Sec. 409.503  Waiver.

    (a) The HCA, on a non-delegable basis, is authorized to waive any 
general rule or procedure in FAR 9.5 when in the Government's interest.
    (b) Each request for waiver shall include:
    (1) The general rule or procedure proposed to be waived;
    (2) An analysis of the potential conflict, including the benefits 
and detriments to the Government and prospective contractors;

[[Page 116]]

    (3) A discussion of why the conflict cannot be avoided, neutralized, 
or mitigated; and
    (4) Advice of counsel obtained under FAR 9.504(b).

                        PART 410_MARKET RESEARCH

Sec.

Sec. 410.001 Policy.

Sec. 410.002 Procedures.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c)

    Source: 70 FR 45, Jan. 3, 2005, unless otherwise noted.



Sec. 410.001  Policy.

    In addition to those uses listed in FAR 10.001, agencies must use 
the results of market research to--
    (a) Ensure the minimum use of hazardous or toxic materials;
    (b) Ensure the maximum use of biobased products and biofuels; and
    (c) Identify products and services on or eligible for addition to 
the Javits-Wagner-O'Day Act Procurement List in order to achieve USDA's 
goal to increase participation in this program.



Sec. 410.002  Procedures.

    Market research must include obtaining information on the commercial 
quality assurance practices as an alternative for Government inspection 
and testing prior to tender for acceptance.

                    PART 411_DESCRIBING AGENCY NEEDS

      Subpart 411.1_Selecting and Developing Requirements Documents

Sec.

Sec. 411.101 Order of precedence for requirements documents.

Sec. 411.103 Market acceptance.

Sec. 411.106 Purchase descriptions for service contracts.

Sec. 411.170 Brand name or equal.

Sec. 411.171 Solicitation provisions and contract clauses.

       Subpart 411.2_Using and Maintaining Requirements Documents


Sec. 411.202 Maintenance of standardization documents.

             Subpart 411.4_Delivery or Performance Schedules


Sec. 411.404 Contract clauses.

                Subpart 411.6_Priorities and Allocations


Sec. 411.600 Scope of subpart.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

      Subpart 411.1_Selecting and Developing Requirements Documents



Sec. 411.101  Order of precedence for requirements documents.

    (a) Office of Management and Budget (OMB) Circular A-119 establishes 
a Federal policy requiring the use of voluntary consensus standards in 
lieu of government-unique standards except where inconsistent with law 
or otherwise impractical.
    (b) The HCA is authorized to submit the determination required by 
OMB Circular A-119 that a voluntary standard is inconsistent with law or 
otherwise impracticable. The HCA must submit the determination to OMB 
through the National Institute of Standards and Technology in accordance 
with the Circular with a copy provided to the SPE.

[70 FR 45, Jan. 3, 2005]



Sec. 411.103  Market acceptance.

    (a) The head of the contracting activity (HCA) may determine that 
offerors must demonstrate, in accordance with FAR 11.103(a), the market 
acceptability of their items to be offered.
    (b) The contracting officer shall place a copy of this 
determination, signed by the HCA, in the solicitation file.



Sec. 411.106  Purchase descriptions for service contracts.

    When contract personnel are to be used, the requiring official shall 
record on the requisition his or her determination whether harm to the 
Government might occur should contractor

[[Page 117]]

personnel fail to identify themselves as non-Government officials.

[61 FR 53646, Oct. 15, 1996. Redesignated at 70 FR 45, Jan. 3, 2005]



Sec. 411.170  Brand name or equal.

    (a) A ``brand name or equal'' purchase description shall include the 
following type of information:
    (1) Identification of the item by generic description.
    (2) Make, model number, catalog designation, or other description, 
and identification of a commercial catalog where it is listed.
    (3) Name of manufacturer, producer, or distributor of the item and 
complete address.
    (4) All salient characteristics of the ``brand name or equal'' 
product or products which have been determined by the requisitioner to 
be essential to the Government's minimum requirements.
    (b) [Reserved]



Sec. 411.171  Solicitation provisions and contract clauses.

    (a) Contracting officers shall insert the provision at 452.211-70, 
Brand Name or Equal, in solicitations, other than those for 
construction, where ``brand name or equal'' purchase descriptions are 
used.
    (b) Contracting officers shall insert the clause at 452.211-71, 
Equal Products Offered, in solicitations, other than those for 
construction, where the provision at 452.211-70 is included.
    (c) Contracting officers shall insert the clause at 452.211-72, 
Statement of Work/Specifications, when the description (statement of 
work) or specification(s) is included in Section J of the solicitation.
    (d) Contracting officers shall insert the clause at 452.211-73, 
Attachment to Statement of Work/Specifications, when there are 
attachments to the description (statement of work) or specifications.

[63 FR 26995, May 15, 1998]

       Subpart 411.2_Using and Maintaining Requirements Documents



Sec. 411.202  Maintenance of standardization documents.

    Recommendations for changes to standardization documents are to be 
submitted through the Senior Procurement Executive, who will coordinate 
the submission of these recommendations to the cognizant preparing 
activity.

             Subpart 411.4_Delivery or Performance Schedules



Sec. 411.404  Contract clauses.

    (a) The contracting officer shall insert the clause at 452.211-74, 
Period of Performance, when it is necessary to specify a period of 
performance, beginning on the date of award, date of receipt of notice 
of award, or a specified date.
    (b) The contracting officer shall insert the clause at 452.211-75, 
Effective Period of the Contract, when it is necessary to specify the 
effective period of the contract.

[63 FR 26995, May 15, 1998]

                Subpart 411.6_Priorities and Allocations



Sec. 411.600  Scope of subpart.

    The Defense Priorities and Allocation System (DPAS) excludes USDA 
activities (see 15 CFR 700.18(b)). USDA Contracting Officers are not 
authorized to place rated orders under DPAS.

                PART 412_ACQUISITION OF COMMERCIAL ITEMS

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

[[Page 118]]

   Subpart 412.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



Sec. 412.302  Tailoring of provisions and clauses for the acquisition of 

commercial items.

    The head of the contracting activity is authorized to approve 
waivers in accordance with FAR 12.302(c). The approved waiver may be 
either for an individual contract or for a class of contracts for the 
specific item. The approved waiver and supporting documentation shall be 
incorporated into the contract file.

[61 FR 53646, Oct. 15, 1996]

[[Page 119]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 413_SIMPLIFIED ACQUISITION PROCEDURES

              Subpart 413.3_Simplified Acquisition Methods

Sec.

Sec. 413.301 Governmentwide commercial purchase card.

Sec. 413.306 SF 44, Purchase Order-Invoice-Voucher.

Sec. 413.307 Forms.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 64 FR 45895, Aug. 23, 1999, unless otherwise noted.

              Subpart 413.3_Simplified Acquisition Methods



Sec. 413.301  Governmentwide commercial purchase card.

    USDA policy and procedures on use of the Governmentwide commercial 
purchase card are established in Departmental Regulation Series 5000.



Sec. 413.306  SF 44, Purchase Order-Invoice-Voucher.

    The Standard Form 44 (and the previously prescribed USDA Form AD-
744) is not authorized for use within USDA.



Sec. 413.307  Forms.

    Form AD-838, Purchase Order, is prescribed for use by USDA in lieu 
of Optional Forms (OFs) 347 and 348 except that use of the OF 347 and OF 
348 is authorized when utilizing the USDA Integrated Acquisition System.

[70 FR 45, Jan. 3, 2005]

                         PART 414_SEALED BIDDING

                   Subpart 414.2_Solicitation of Bids

Sec.

Sec. 414.201 Preparation of invitations for bids.

Sec. 414.201-6 Solicitation provision.

           Subpart 414.4_Opening of Bids and Award of Contract


Sec. 414.404 Rejection of bids.

Sec. 414.404-1 Cancellation of invitations after opening.

Sec. 414.407 Mistakes in bids.

Sec. 414.407-3 Other mistakes disclosed before award.

Sec. 414.407-4 Mistakes after award.

Sec. 414.409 Information to bidders.

Sec. 414.409-2 Award of classified contracts.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

                   Subpart 414.2_Solicitation of Bids



Sec. 414.201  Preparation of invitations for bids.



Sec. 414.201-6  Solicitation provision.

    The contracting officer shall insert the provision 452.214-70, Award 
by Lot, when multiple items are segregated into clearly identifiable 
lots and the contracting officer wants to reserve the right to award by 
item within a lot, if award in that manner would be advantageous to the 
Government.

           Subpart 414.4_Opening of Bids and Award of Contract



Sec. 414.404  Rejection of bids.



Sec. 414.404-1  Cancellation of invitations after opening.

    An acquisition official at a level above the contracting officer is 
authorized to make the determinations under FAR 14.404-1(c) and (e)(1).



Sec. 414.407  Mistakes in bids.



Sec. 414.407-3  Other mistakes disclosed before award.

    The authority to make the determinations under FAR 14.407-3(a), (b), 
and (d) is delegated, without power of redelegation, to the head of the 
contracting activity. The authority to make the determination under FAR 
14.407-3(c) is delegated to the contracting officer. Each determination 
pursuant to FAR 14.407-3 shall have the concurrence of the Office of the 
General Counsel (OGC).

[[Page 120]]



Sec. 414.407-4  Mistakes after award.

    If a mistake in bid is disclosed after award, the contracting 
officer shall make a final determination in accordance with the 
provisions of FAR 14.407-4 (b) and (c) and shall coordinate each 
proposed determination with OGC. Such coordination shall, at a minimum, 
consist of the contracting officer providing the proposed determination 
and the case file to OGC for comment.



Sec. 414.409  Information to bidders.



Sec. 414.409-2  Award of classified contracts.

    Disposition of classified information shall be in accordance with 
Departmental Regulation and Manual (3400 Series) and in accordance with 
direction issued by the Information Security Staff, Personnel and 
Document Security Division, Office of Procurement and Property 
Management.

[70 FR 45, Jan. 3, 2005]

                   PART 415_CONTRACTING BY NEGOTIATION

   Subpart 415.2_Solicitation and Receipt of Proposals and Information

Sec.

Sec. 415.204 Contract format.

Sec. 415.207 Handling proposals and information.

Sec. 415.209 Solicitation provisions and contract clauses.

                     Subpart 415.3_Source Selection


Sec. 415.303 Responsibilities.

Sec. 415.305 Proposal evaluation.

                     Subpart 415.4_Contract Pricing


Sec. 415.404-4 Profit.

Subpart 415.5_Preaward, Award, and Postaward Notifications, Protests and 
                                Mistakes


Sec. 415.570 Post-award conference.

                   Subpart 415.6_Unsolicited Proposals


Sec. 415.604 Agency points of contact.

Sec. 415.606 Agency procedures.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 64 FR 52674, Sept. 30, 1999, unless otherwise noted.

   Subpart 415.2_Solicitation and Receipt of Proposals and Information



Sec. 415.204  Contract format.

    The Senior Procurement Executive is authorized to exempt contracts 
from the uniform contract format.



Sec. 415.207  Handling proposals and information.

    (a) Throughout the source selection process, agency personnel and 
non-Government evaluators with access to proposal information shall 
disclose neither the number of offerors nor their identity except as 
authorized by FAR subpart 15.5. (See also FAR 5.403.)
    (b) The contracting officer shall obtain the following written 
agreement from the non-Government evaluator prior to the release of any 
proposal to that evaluator.

         Agreement Governing the Use and Disclosure of Proposals

RFP_____________________________________________________________________
Offeror_________________________________________________________________
    1. To the best of my knowledge and belief, no conflict of interest 
exists that may diminish my capacity to perform an impartial and 
objective review of the offeror's proposal, or may otherwise result in a 
biased opinion or an unfair advantage. If a potential conflict of 
interest arises or if I identify such a conflict, I agree to notify the 
Government promptly concerning the potential conflict. In determining 
whether any potential conflict of interest exists, I agree to review 
whether my or my employer's relationships with other persons or 
entities, including, but not limited to, ownership of stocks, bonds, 
other outstanding financial interests or commitments, employment 
arrangements (past, present, or under consideration), and, to the extent 
known by me, all financial interests and employment arrangements of my 
spouse, minor children, and other members of my immediate household, may 
place me in a position of conflict, real or apparent, with the 
evaluation proceedings.
    2. I agree to use proposal information only for evaluation purposes. 
I understand that any authorized restriction on disclosure placed upon 
the proposal by the prospective contractor or subcontractor or by the 
Government shall be applied to any reproduction or abstracted 
information of the proposal. I agree to use my best effort to safeguard 
such information physically, and not to disclose the contents of, or 
release any information relating to, the proposal(s) to anyone outside 
of the Source Evaluation Board or other

[[Page 121]]

panel assembled for this acquisition, the Contracting Officer, or other 
individuals designated by the Contracting Officer.
    3. I agree to return to the Government all copies of proposals, as 
well as any abstracts, upon completion of the evaluation.
________________________________________________________________________
(Name and Organization)
________________________________________________________________________
(Date)

                           (End of provision)

    (c) The release of a proposal to a non-Government evaluator for 
evaluation does not constitute the release of information for purposes 
of the Freedom of Information Act (5 U.S.C. 552).
    (d) The contracting officer shall attach a cover page bearing the 
following notice: GOVERNMENT NOTICE FOR HANDLING PROPOSALS--This 
proposal shall be used and disclosed for evaluation purposes only. 
Attach a copy of this Government notice to every reproduction or 
abstract of the proposal. Any authorized restrictive notices which the 
submitter places on this proposal shall be strictly complied with. 
Disclosure of this proposal outside the Government for evaluation 
purposes shall be made only to the extent authorized by, and in 
accordance with, FAR 3.104-4, FAR 15.207, and AGAR 415.207.

[64 FR 52674, Sept. 30, 1999; 64 FR 54963, Oct. 8, 1999, as amended at 
70 FR 46, Jan. 3, 2005]



Sec. 415.209  Solicitation provisions and contract clauses.

    (a) The provision at 452.215-71, Instructions for the Preparation of 
Technical and Business Proposals, may be used when offerors will be 
required to submit technical and business proposals. Contracting 
officers should tailor the clause to reflect the degree of information 
required for the specific acquisition.
    (b) The contracting officer shall insert the provision at 452.215-
72, Amendments to Proposals, in solicitations which require the 
submittal of lengthy, complex technical proposals.

                     Subpart 415.3_Source Selection



Sec. 415.303  Responsibilities.

    The head of the contracting activity (HCA) is authorized to appoint 
an individual other than the contracting officer as the source selection 
authority.



Sec. 415.305  Proposal evaluation.

    HCAs are responsible for establishing procedures regarding the 
release of cost information to the members of the technical evaluation 
team.

                     Subpart 415.4_Contract Pricing



Sec. 415.404-4  Profit.

    (a)(1) USDA will use a structured approach to determine the profit 
or fee prenegotiation objective in acquisition actions when price 
negotiation is based on cost analysis.
    (2) The following types of acquisitions are exempt from the 
requirements of the structured approach, but the contracting officer 
shall comply with FAR 15.404-4(d) when analyzing profit for these 
contracts or actions:
    (i) Architect-engineer contracts;
    (ii) Construction contracts;
    (iii) Contracts primarily requiring delivery of material supplied by 
subcontractors;
    (iv) Termination settlements; and
    (v) Cost-plus-award-fee contracts;
    (b) Unless otherwise restricted by contracting activity procedures, 
the Contracting Officer may use another Federal agency's structured 
approach if that approach has been formalized and is maintained as part 
of that Agency's acquisition regulations (i.e., included in that 
Agency's assigned chapter of Title 48 of the Code of Federal 
Regulations).
    (c) The HCA is responsible for establishing procedures to ensure 
compliance with this subpart.

Subpart 415.5_Preaward, Award, and Postaward Notifications, Protests and 
                                Mistakes



Sec. 415.570  Post-award conference.

    If a postaward conference is necessary, the contracting officer 
shall insert clause 452.215-73, Post-Award Conference.

[[Page 122]]

                   Subpart 415.6_Unsolicited Proposals



Sec. 415.604  Agency points of contact.

    HCAs are responsible for establishing procedures to ensure 
compliance with the requirements of FAR 15.604.



Sec. 415.606  Agency procedures.

    HCAs are responsible for establishing the procedures for control of 
unsolicited proposals required by FAR 15.606(a) and for identifying the 
contact points as required by FAR 15.606(b).

                       PART 416_TYPES OF CONTRACTS

Sec.

Sec. 416.000 Scope of part.

                   Subpart 416.2_Fixed-Price Contracts


Sec. 416.203 Fixed-price contracts with economic price adjustment.

Sec. 416.203-4 Contract clauses.

                    Subpart 416.4_Incentive Contracts


Sec. 416.405 Cost-reimbursement incentive contracts.

Sec. 416.405-2 Cost-plus-award-fee contracts.

Sec. 416.406 Contract clauses.

Sec. 416.470 Solicitation provision.

               Subpart 416.5_Indefinite-Delivery Contracts


Sec. 416.505 Ordering.

Sec. 416.506 Solicitation provision and contract clauses.

   Subpart 416.6_Time-and-Materials, Labor-Hour, and Letter Contracts


Sec. 416.603 Letter contracts.

Sec. 416.603-2 Application.

Sec. 416.603-4 Contract clauses.

Sec. 416.670 Contract clauses.

                        Subpart 416.7_Agreements


Sec. 416.702 Basic agreements.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



Sec. 416.000  Scope of part.

    Heads of contracting activities (HCA's) are authorized to establish 
written procedures allowing the use of any contract type described in 
FAR part 16 for acquisitions made under simplified acquisition 
procedures in FAR part 13.

                   Subpart 416.2_Fixed-Price Contracts



Sec. 416.203  Fixed-price contracts with economic price adjustment.



Sec. 416.203-4  Contract clauses.

    An economic price adjustment clause based on cost indexes of labor 
or material may be used under the conditions listed in FAR 16.203-4(d) 
after approval by the HCA and consultation with the Office of the 
General Counsel.

                    Subpart 416.4_Incentive Contracts



Sec. 416.405  Cost-reimbursement incentive contracts.



Sec. 416.405-2  Cost-plus-award-fee contracts.

    The HCA may designate an acquisition official other than the 
contracting officer as the fee determination official (FDO) to make the 
final determination of the award fee. The designated official must have 
warranted contracting authority at the same level as the contracting 
officer or higher, and shall not have participated in preparing the 
contractor performance evaluation. If the HCA does not designate an FDO, 
the chief of the contracting office shall act as the FDO.

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26995, May 15, 1998.]



Sec. 416.406  Contract clauses.

    The contracting officer shall insert a clause substantially the same 
as the clause at 452.216-70, Award Fee, in solicitations and contracts 
which contemplate the award of cost-plus-award-fee contracts.

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26995, May 15, 1998.]



Sec. 416.470  Solicitation provision.

    The contracting officer shall insert the provision at 452.216-71, 
Base Fee and Award Fee Proposal, in solicitations which contemplate the 
award of a cost-plus-award-fee contract.

[[Page 123]]

               Subpart 416.5_Indefinite-Delivery Contracts



Sec. 416.505  Ordering.

    (a) The Chief, Procurement Policy Division, Office of Procurement 
and Property Management, has been designated as the Departmental Task 
Order Ombudsman.
    (b) Each HCA shall designate a task order ombudsman for the 
contracting activity. The HCA shall forward a copy of the designation 
memorandum to the Departmental Task Order Ombudsman. Contracting 
activity ombudsmen shall review and resolve complaints from contractors 
concerning task or delivery orders placed by the contracting activity.
    (c) Any contractor who is not satisfied with the resolution of a 
complaint by a contracting activity ombudsman may request the 
Departmental Task Order Ombudsman to review the complaint.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 46, Jan. 3, 2005]



Sec. 416.506  Solicitation provision and contract clauses.

    (a) The contracting officer shall insert a provision substantially 
the same as the provision at 452.216-72, Evaluation Quantities-
Indefinite-Delivery Contract, in solicitations which contemplate the 
award of indefinite-quantity or requirements contracts to establish the 
basis on which offers will be evaluated.
    (b) The contracting officer shall insert the clause at 452.216-73, 
Minimum and Maximum Contract Amounts, in indefinite-delivery, 
indefinite-quantity contracts when the clause at FAR 52.216-18 is used.

   Subpart 416.6_Time-and-Materials, Labor-Hour, and Letter Contracts



Sec. 416.603  Letter contracts.



Sec. 416.603-2  Application.

    The HCA is authorized to extend the period for defining a letter 
contract required by FAR 16.603-2(c) in extreme cases where it is 
determined in writing that such action is in the best interest of the 
Government.



Sec. 416.603-4  Contract clauses.

    The contracting officer shall insert the clause at 452.216-75, 
Letter Contract, in a definitive contract superseding a letter contract.



Sec. 416.670  Contract clauses.

    The contracting officer shall limit the Government's obligation 
under a time-and-materials or labor-hour contract by inserting the 
clause at 452.216-74, Ceiling Price.

                        Subpart 416.7_Agreements



Sec. 416.702  Basic agreements.

    Promptly after execution by the Government, the HCA shall furnish to 
the Senior Procurement Executive a copy of each basic agreement 
negotiated with contractors in accordance with FAR 16.702.

                  PART 417_SPECIAL CONTRACTING METHODS

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

                          Subpart 417.2_Options



Sec. 417.204  Contracts.

    The head of the contracting activity is authorized to approve 
contracts which exceed the 5 year limitation in FAR 17.204(e).

[61 FR 53646, Oct. 15, 1996]

                           PART 418 [RESERVED]

[[Page 124]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 419_SMALL BUSINESS PROGRAMS

                         Subpart 419.2_Policies

Sec.

Sec. 419.201 General policy.

Sec. 419.201-70 Office of Small and Disadvantaged Business Utilization 
          (OSDBU).

Sec. 419.201-71 Small business coordinators.

Sec. 419.201-73 Reports.

               Subpart 419.5_Set-Asides for Small Business


Sec. 419.508 Solicitation provisions and contract clauses.

     Subpart 419.6_Certificates of Competency and Determinations of 
                             Responsibility


Sec. 419.602 Procedures.

Sec. 419.602-1 Referral.

Sec. 419.602-3 Resolving differences between the agency and the Small 
          Business Administration.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

                         Subpart 419.2_Policies

    Source: 70 FR 46, Jan. 3, 2005, unless otherwise noted.



Sec. 419.201  General policy.

    It is the policy of USDA to provide maximum practicable contracting 
and subcontracting opportunities to small business (SB), small 
disadvantaged business (SDB), HUBZone small business, women-owned 
business (WOB), veteran-owned small business (VOSB), and service-
disabled veteran-owned small business (SDVOSB) concerns.



Sec. 419.201-70  Office of Small and Disadvantaged Business Utilization 
          (OSDBU).

    The Office of Small and Disadvantaged Business Utilization (OSDBU) 
develops rules, policy, procedures and guidelines for the effective 
administration of USDA's small business program that includes all 
categories named under 419.201.



Sec. 419.201-71  Small business coordinators.

    The head of the contracting activity (HCA) or a representative of 
the HCA shall designate in writing a small business coordinator in each 
contracting office. Supervisors of small business coordinators are 
encouraged to provide sufficient time for the coordinators to carry out 
their small business program duties. Coordinators' duties shall include, 
but not be limited to, the following:
    (a) Reviewing each proposed acquisition expected to exceed the 
simplified acquisition threshold prior to its solicitation. The 
coordinator shall:
    (1) Recommend section 8(a), HUBZone, or SDVOSB action and identify 
potential contractors, or
    (2) Identify available SDB, WOB, and VOSB to be solicited by 
competitive procedures. Coordinators shall document the contract file 
with recommendations made and actions taken.
    (b) Participating in goal-setting procedures and planning activities 
and establishing aggressive SDB, WOB, and SDVOSB goals based on the 
annual review of advance acquisition plans.
    (c) Participating in the review of those contracts which require the 
successful offeror to submit written plans for the utilization of small 
businesses as subcontractors to include all preference program areas in 
419.201.
    (d) Ensuring that purchases exceeding $2,500 and not exceeding the 
simplified acquisition threshold are reserved exclusively for small 
businesses, including all preference program areas named in 419.201. 
This policy shall be implemented unless the contracting officer is 
unable to obtain offers from two or more small business concerns that 
are competitive with market prices and in terms of quality and delivery 
of the goods or services being purchased.
    (e) Maintaining comprehensive source listings of small businesses.

[[Page 125]]

    (f) Upon written request, providing small businesses (in the 
preference program areas named in 419.201) the bidders' mailing lists of 
individuals receiving solicitations which will contain the 
subcontracting clause entitled ``Utilization of Small Business 
Concerns'' (FAR 52.219-8). These lists may be limited to those supplies 
or services of major interest to the requesting firms.
    (g) Developing a program of contacts with local and small (to 
include all preference program areas named in 419.201) trade, business, 
and professional associations and organizations and Indian tribal 
councils to apprise them of USDA's program needs and recurring contract 
requirements.
    (h) Periodically meeting with program managers to discuss 
requirements of the small business preference program, to explore the 
feasibility of breaking large complex requirements into smaller lots 
suitable for participation by small firms, and to encourage program 
managers to meet with these firms so that their capabilities can be 
demonstrated.
    (i) Establishing internal operating procedures which implement the 
requirements of the regulations as set forth in this part 419.
    (j) Compiling data and preparing all reports pertaining to the small 
business program activities, and ensuring that these reports are 
accurate, complete and up-to-date.
    (k) Assisting and counseling small business firms.
    (l) Reviewing proposed large contract requirements that may be 
bundled to determine the potential for breaking out components suitable 
for purchase from small business firms.
    (m) Ensuring that the SBA Resident Procurement Center Representative 
(PCR) is provided an opportunity and reasonable time to review any 
solicitation that meets the dollar threshold for small business 
(including all preference program areas named in 419.201) subcontracting 
plans.



Sec. 419.201-73  Reports.

    The Director, OSDBU, shall be responsible for submitting reports 
concerning USDA's progress and achievements in the procurement 
preference program.

               Subpart 419.5_Set-Asides for Small Business



Sec. 419.508  Solicitation provisions and contract clauses.

    The contracting officer shall insert the provision at 452.219-70, 
Size Standard and NAICS Code Information, in solicitations that are set 
aside for small businesses.

[61 FR 53646, Oct. 15, 1996, as amended at 66 FR 49317, Sept. 27, 2001]

     Subpart 419.6_Certificates of Competency and Determinations of 
                             Responsibility



Sec. 419.602  Procedures.



Sec. 419.602-1  Referral.

    Contracting officers shall refer determinations of non-
responsibility regarding small businesses directly to the SBA Regional 
Office servicing the location where the contractor's office (home) is 
located.



Sec. 419.602-3  Resolving differences between the agency and the Small 

Business Administration.

    The HCA is authorized to appeal the issuance of a COC to SBA 
Headquarters as provided by FAR 19.602-3(a).

[63 FR 26995, May 15, 1998]

                        PARTS 420-421 [RESERVED]

      PART 422_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

                   Subpart 422.1_Basic Labor Policies

Sec.

Sec. 422.103 Overtime.

Sec. 422.103-4 Approvals.

       Subpart 422.3_Contract Work Hours and Safety Standards Act


Sec. 422.302 Liquidated damages and overtime pay.

[[Page 126]]

   Subpart 422.4_Labor Standards for Contracts Involving Construction


Sec. 422.404 Davis-Bacon Act wage determinations.

Sec. 422.404-6 Modifications of wage determinations.

Sec. 422.406 Administration and enforcement.

Sec. 422.406-8 Investigations.

             Subpart 422.6_Walsh-Healey Public Contracts Act


Sec. 422.604 Exemptions.

Sec. 422.604-2 Regulatory exemptions.

Sec. 422.608 [Reserved]

               Subpart 422.8_Equal Employment Opportunity


Sec. 422.803 Responsibilities.

Sec. 422.804 Affirmative action programs.

Sec. 422.804-2 Construction.

Sec. 422.807 Exemptions.

 Subpart 422.13_Special Disabled Veterans, Veterans of the Vietnam Era, 
                       and Other Eligible Veterans


Sec. 422.1303 Waivers.

Sec. 422.1306 Complaint procedures.

         Subpart 422.14_Employment of Workers With Disabilities


Sec. 422.1403 Waivers.

Sec. 422.1406 Complaint procedures.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

                   Subpart 422.1_Basic Labor Policies



Sec. 422.103  Overtime.



Sec. 422.103-4  Approvals.

    Requests for the use of overtime shall be approved by an acquisition 
official at a level above the contracting officer in accordance with the 
procedures in FAR 22.103-4 (a) and (b).

       Subpart 422.3_Contract Work Hours and Safety Standards Act



Sec. 422.302  Liquidated damages and overtime pay.

    Heads of contracting activities (HCA's) are authorized to review 
determinations of liquidated damages due under section 104(c) of the 
Contract Work Hours and Safety Standards Act, and to take remedial 
action, if appropriate, in accordance with FAR 22.302(c). Contractors or 
subcontractors may request review of administrative determinations of 
liquidated damages by written notice to the contracting officer. The 
contracting officer shall promptly forward appeals of liquidated damages 
determinations to the HCA.

   Subpart 422.4_Labor Standards for Contracts Involving Construction



Sec. 422.404  Davis-Bacon Act wage determinations.



Sec. 422.404-6  Modifications of wage determinations.

    HCA's are authorized to request extension of the 90 day period for 
award after bid opening as provided in FAR 22.404-6(b)(6).



Sec. 422.406  Administration and enforcement.



Sec. 422.406.8  Investigations.

    Reports of violations shall be forwarded to the HCA, who shall 
process such reports in accordance with FAR 22.406-8(d).

             Subpart 422.6_Walsh-Healey Public Contracts Act



Sec. 422.604  Exemptions.



Sec. 422.604-2  Regulatory exemptions.

    The Assistant Secretary for Administration can request the Secretary 
of Labor to exempt contracts from the Walsh-Healey Public Contracts Act 
pursuant to FAR 22.604-2(b). A written finding justifying the request 
for exemption shall be prepared for the Assistant Secretary's signature 
and submitted by the HCA to the Senior Procurement Executive (SPE) for 
referral to the Assistant Secretary.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 46, Jan. 3, 2005]

[[Page 127]]



Sec. 422.608  [Reserved]

               Subpart 422.8_Equal Employment Opportunity



Sec. 422.803  Responsibilities.

    The contracting office shall submit questions involving the 
applicability of Executive Order 11246 and FAR subpart 22.8 through the 
HCA to the SPE for resolution.



Sec. 422.804  Affirmative action programs.



Sec. 422.804-2  Construction.

    The HCA shall ensure that each contracting office, awarding 
nonexempt construction contracts, maintains a current listing of covered 
geographical areas subject to affirmative action requirements specifying 
goals for minorities and women in covered construction trades.



Sec. 422.807  Exemptions.

    (a) The Assistant Secretary for Administration is authorized to make 
the determination in FAR 22.807(a)(1) that a contract is essential to 
the national security.
    (b) The contracting officer shall submit requests for exemptions 
under FAR 22.807(a)(1), (a)(2), and (b)(5) through the HCA to the SPE 
for determination by the Assistant Secretary of Administration or 
referral to the Deputy Assistant Secretary for Federal Contract 
Compliance Programs, Department of Labor, as appropriate.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 46, Jan. 3, 2005]

 Subpart 422.13_Special Disabled Veterans, Veterans of the Vietnam Era, 
                       and Other Eligible Veterans

    Source: 70 FR 46, Jan. 3, 2005, unless otherwise noted.



Sec. 422.1303  Waivers.

    (a) The Assistant Secretary for Administration is authorized to make 
the waiver determination in FAR 22.1305(b) that a contract is essential 
to the national security.
    (b) The contracting officer shall submit requests for exemptions 
under FAR 22.1305(a) and (b) through the HCA to the SPE for 
determination by the Assistant Secretary for Administration or referral 
to the Deputy Assistant Secretary for Federal Contract Compliance 
Programs, Department of Labor as appropriate.



Sec. 422.1306  Complaint procedures.

    The contracting officer shall forward complaints received about the 
administration of the Vietnam Era Veterans Readjustment Assistance Act 
directly to the Department of Labor as prescribed in FAR 22.1308.

         Subpart 422.14_Employment of Workers With Disabilities



Sec. 422.1403  Waivers.

    (a) The Assistant Secretary for Administration is authorized to make 
the waiver determinations under FAR 22.1403(a) and (b) with the 
concurrence of the Deputy Assistant Secretary for Federal Contract 
Compliance Programs, Department of Labor.
    (b) The contracting officer shall submit requests for waivers 
through the HCA to the SPE for determination by the Assistant Secretary 
for Administration.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 46, Jan. 3, 2005]



Sec. 422.1406  Complaint procedures.

    The contracting officer shall forward complaints received about the 
administration of Section 503 of the Rehabilitation Act of 1973, as 
amended, directly to the OFCCP as prescribed in FAR 22.1406.

  PART 423_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
       TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

Subpart 423.1 [Reserved]

     Subpart 423.2_Energy and Water Efficiency and Renewable Energy

Sec.

Sec. 423.202 Policy.

[[Page 128]]

                Subpart 423.4_Use of Recovered Materials


Sec. 423.400 Scope of subpart.

Sec. 423.402 [Reserved]

Sec. 423.403 Policy.

Sec. 423.404 Agency affirmative procurement programs.

Sec. 423.405 Procedures.

                    Subpart 423.5_Drug-Free Workplace


Sec. 423.506 Suspension of payments, termination of contract, and 
          debarment and suspension actions.

              Subpart 423.6_Notice of Radioactive Material


Sec. 423.601 Requirements.

 Subpart 423.7_Contracting for Environmentally Preferable Products and 
                                Services


Sec. 423.703 Policy.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 70 FR 47, Jan. 3, 2005, unless otherwise noted.

Subpart 423.1 [Reserved]

     Subpart 423.2_Energy and Water Efficiency and Renewable Energy



Sec. 423.202  Policy.

    Information on Energy Star, energy efficient, water efficient, and 
low standby products covered by this policy is available via the 
Internet at http://www.eere.energy.gov/femp/technologies/eeproducts.cfm.

                Subpart 423.4_Use of Recovered Materials



Sec. 423.400  Scope of subpart.

    This subpart implements and supplements FAR policies and procedures 
for acquiring products and services when preference is given to offers 
of products containing recovered materials. This subpart further 
supplements FAR subpart 23.4 by providing guidance for affirmative 
procurement programs in accordance with Executive Order 13101 and 42 
U.S.C. 6962.



Sec. 423.402  [Reserved]



Sec. 423.403  Policy.

    It is the policy of USDA to acquire and use Environmental Protection 
Agency (EPA) designated recycled content products.



Sec. 423.404  Agency affirmative procurement programs.

    The USDA affirmative procurement program (APP) policy applicable to 
all USDA agencies and staff offices is hereby established. The 
components of this APP include:
    (a) Recovered Materials Preference Program. In accord with the 
requirements of Section 402(c) of Executive Order 13101, Greening the 
Government Through Recycling, Waste Prevention, and Federal Acquisition, 
USDA agencies will include, in all applicable solicitations and 
contracts, a preference for products and services which meet or exceed 
the EPA purchasing guidelines as contained in the EPA product Recovered 
Materials Advisory Notices (RMANs). Agencies may choose an evaluation 
factor preference, or other method of indicating preference in accord 
with their agency needs. Agencies will, as appropriate, eliminate virgin 
material requirements in contract specifications and replace them with a 
statement of preference for recycled materials.
    (b) Promotion program. USDA agencies will actively promote a 
preference for recovered materials, environmentally preferable products, 
and biobased products in contacts with vendors, in written materials, 
and other appropriate opportunities.
    (c) Reasonable estimation of recovered materials used in the 
performance of contracts. USDA agencies annually will provide in writing 
to the USDA Senior Procurement Executive, in response to a call for data 
for the Resource Conservation and Recovery report, reasonable estimates, 
certification, and verification of recovered material used in the 
performance of contracts.
    (d) Annual review and monitoring of effectiveness of the program. 
USDA agencies will provide an annual assessment of the effectiveness of 
their affirmative

[[Page 129]]

procurement program actions in increasing the purchase and use of EPA 
designated products.
    (e) Purchase of EPA designated products. USDA agencies will require 
that 100% of purchases of EPA-designated products contain recovered 
material, unless the item cannot be acquired--
    (1) Competitively within a reasonable time frame;
    (2) Meeting appropriate performance standards; or
    (3) At a reasonable price.
    (f) The 100% purchase requirement of paragraph (e) of this section 
applies to all USDA agency purchases, including those at or below the 
micro-purchase threshold.



Sec. 423.405  Procedures.

    (a) The threshold of purchase for EPA designated items is $10,000 
per year at the USDA departmental, not individual agency, level. 
Therefore, the APP requirements above, including the 100% purchase 
requirement, apply at the individual agency and staff office level.
    (b) Contracting officers should refer to EPA's list of designated 
products and products identified as recycled content when purchasing 
supplies or services. Information on EPA designated products is 
available at: www.epa.gov/cpg/products.htm.
    (c) All agencies and USDA Contracting Officers must take necessary 
actions to carry out the provisions of the USDA APP policy described in 
this subpart.

                    Subpart 423.5_Drug-Free Workplace



Sec. 423.506  Suspension of payments, termination of contract, and 

debarment and suspension actions.

    (a) The contracting officer may recommend waiver of the 
determination to suspend payments, to terminate a contract, or to debar 
or to suspend a contractor.
    (b) The recommendation shall be submitted through the HCA to the SPE 
and shall include a full description of the disruption of USDA 
operations should the determination not be waived.
    (c) The SPE will submit the request for a waiver to the Secretary 
with a recommendation for action.

              Subpart 423.6_Notice of Radioactive Material



Sec. 423.601  Requirements.

    The HCA shall establish a system of instructions to identify the 
installation/facility radiation protection officer.

 Subpart 423.7_Contracting for Environmentally Preferable Products and 
                                Services



Sec. 423.703  Policy.

    (a) USDA's Affirmative Procurement Program promotes energy-
efficiency, water conservation, and the acquisition of environmentally 
preferable products and services. In its acquisitions, USDA will support 
federal ``green purchasing'' principles in the acquisition of products 
and services that are environmentally preferable or that are biobased 
content products and services.
    (b) USDA agencies will actively promote this preference for 
environmentally preferable products and biobased products in contacts 
with vendors, in written materials, and other appropriate opportunities.

        PART 424_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

             Subpart 424.1_Protection of Individual Privacy

Sec.

Sec. 424.103 Procedures.

Sec. 424.104 Contract clauses.

                Subpart 424.2_Freedom of Information Act


Sec. 424.203 Policy.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

[[Page 130]]

             Subpart 424.1_Protection of Individual Privacy



Sec. 424.103  Procedures.

    USDA regulations implementing the Privacy Act are found in 7 CFR, 
subtitle A, part 1, subpart G. Contracting officers shall follow these 
regulations when responding to requests for information or awarding 
contracts that will involve the design, development, or operation of a 
system of records on individuals to accomplish agency functions.



Sec. 424.104  Contract clauses.

    When applicable, the contracting officer shall insert the clause at 
452.224-70, Confidentiality of Information, in contracts involving 
confidential information.

                Subpart 424.2_Freedom of Information Act



Sec. 424.203  Policy.

    USDA regulations implementing the Freedom of Information Act are 
found in 7 CFR, Subtitle A, Part 1, Subpart A. Contracting officers 
shall follow these regulations when responding to requests for 
information.

[70 FR 48, Jan. 3, 2005]

                      PART 425_FOREIGN ACQUISITION

                 Subpart 425.1_Buy American Act_Supplies

Sec.

Sec. 425.102 [Reserved]

Sec. 425.103 Exceptions.

Sec. 425.104 Nonavailable articles.

Sec. 425.105 Determining reasonableness of cost.

Sec. 425.108 [Reserved]

          Subpart 425.2_Buy American Act_Construction Materials


Sec. 425.202 Exceptions.

Sec. 425.203-425.204 [Reserved]

Subparts 425.3-425.4 [Reserved]

                      Subpart 425.6_Trade Sanctions


Sec. 425.602 Exceptions.

Subpart 425.9 [Reserved]

        Subpart 425.10_Additional Foreign Acquisition Regulations


Sec. 425.1001 Waiver of right to examination of records.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

                 Subpart 425.1_Buy American Act_Supplies

    Source: 70 FR 48, Jan. 3, 2005, unless otherwise noted.



Sec. 425.102  [Reserved]



Sec. 425.103  Exceptions.

    (a) The Senior Procurement Executive (SPE) shall make the 
determination prescribed in FAR 25.103(a).
    (b) Copies of determinations of nonavailability in accordance with 
FAR 25.103(b)(2) or 25.202(a)(2), for articles, material or supplies not 
listed in FAR 25.104, may be submitted to the SPE for submission to the 
Civilian Agency Acquisition Council (CAAC).



Sec. 425.104  Nonavailable articles.

    Information required by FAR 25.104(b) shall be submitted to the SPE 
for submission to the CAAC.



Sec. 425.105  Determining reasonableness of cost.

    The SPE may make the determination prescribed in FAR 25.105(a). 
Requests for a determination by the SPE shall be submitted by the HCA, 
in writing, and shall provide a detailed justification supporting why 
evaluation factors higher than those listed in FAR 25.102(b)(1) and (2) 
should be applied to determine whether the offered price of a domestic 
end product is unreasonable.



Sec. 425.108  [Reserved]

          Subpart 425.2_Buy American Act_Construction Materials



Sec. 425.202  Exceptions.

    (a) The SPE shall make the determination prescribed in FAR 
25.202(a)(1).
    (b) If a contracting officer proposes that the use of a particular 
domestic

[[Page 131]]

construction material should be waived for a contract on the grounds 
that its use would be impracticable, the contracting officer shall 
submit a proposed determination with supporting information through the 
HCA to the SPE for approval or disapproval.

[63 FR 26995, May 15, 1998, as amended at 70 FR 48, Jan. 3, 2005]



Sec. 425.203-425.204  [Reserved]

Subparts 425.3-425.4 [Reserved]

                      Subpart 425.6_Trade Sanctions



Sec. 425.602  Exceptions.

    The Secretary, without power of redelegation, has the authority to 
make the necessary determination(s) and authorize award(s) of 
contract(s) in accordance with FAR 25.602(b).

[70 FR 48, Jan. 3, 2005]

Subpart 425.9 [Reserved]

        Subpart 425.10_Additional Foreign Acquisition Regulations



Sec. 425.1001  Waiver of right to examination of records.

    The SPE shall make the determination under FAR 25.1001(a)(2)(iii).

[70 FR 48, Jan. 3, 2005]

                  PART 426_OTHER SOCIOECONOMIC PROGRAMS

Subpart 426.70 [Reserved]

[[Page 132]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 427_PATENTS, DATA, AND COPYRIGHTS

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

                          Subpart 427.1_General



Sec. 427.104  General guidance.

    As used in FAR part 27, the agency head or agency head designee is 
the Senior Procurement Executive, except under FAR 27.306(a) and (b). 
Under FAR 27.306(a) and (b), the agency head is the Secretary without 
power of redelegation.

[61 FR 53646, Oct. 15, 1996]

                      PART 428_BONDS AND INSURANCE

           Subpart 428.1_Bonds and Other Financial Protections

Sec.

Sec. 428.101 Bid guarantees.

Sec. 428.101-1 Policy on use.

Sec. 428.106 Administration.

Sec. 428.106-6 Furnishing information.

           Subpart 428.2_Sureties and Other Security for Bonds


Sec. 428.203 Acceptability of individual sureties.

Sec. 428.204 Alternatives in lieu of corporate or individual sureties.

Sec. 428.204-2 Certified or cashier's checks, bank drafts, money orders, 
          or currency.

                         Subpart 428.3_Insurance


Sec. 428.307 Insurance under cost-reimbursement contracts.

Sec. 428.307-1 Group insurance plans.

Sec. 428.310 Contract clause for work on a Government installation.

Sec. 428.370 Government-owned vehicles operated in foreign countries.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

           Subpart 428.1_Bonds and Other Financial Protections



Sec. 428.101  Bid guarantees.



Sec. 428.101-1  Policy on use.

    The Senior Procurement Executive may authorize class waivers of the 
requirement to obtain bid guarantees.



Sec. 428.106  Administration.



Sec. 428.106-6  Furnishing information.

    Heads of contracting activities (HCA's) or their designees may 
furnish certified copies of bonds and the contracts for which they were 
given as provided by FAR 28.106-6(c). Requesters may be required to pay 
costs of certification and copying established by the Departmental Fee 
Schedule for records requests (7 CFR part 1, subpart A, appendix A).

           Subpart 428.2_Sureties and Other Security for Bonds



Sec. 428.203  Acceptability of individual sureties.

    Evidence of possible criminal or fraudulent activities by an 
individual surety shall be reported to the Office of Inspector General 
in accordance with Departmental Regulations (1700 series).



Sec. 428.204  Alternatives in lieu of corporate or individual sureties.

    HCA's shall establish procedures to ensure protection and conveyance 
of deposited securities of the types listed in FAR 28.204-1 through 
28.204-3.



Sec. 428.204-2  Certified or cashier's checks, bank drafts, money 

orders, or currency.

    The contracting officer shall insert the provision at 452.228-70, 
Alternative Forms of Security, in a solicitation if a bond is required.

[[Page 133]]

                         Subpart 428.3_Insurance



Sec. 428.307  Insurance under cost-reimbursement contracts.



Sec. 428.307-1  Group insurance plans.

    Under cost-reimbursement contracts, before buying insurance under a 
group insurance plan, the contractor shall submit the plan to the 
contracting officer for review. During review, the contracting officer 
shall use all sources of information available, such as audits, industry 
practice, or other sources of information, to determine whether 
acceptance of the plan submitted would be in the Government's best 
interest.



Sec. 428.310  Contract clause for work on a Government installation.

    The contracting officer shall insert the clause at 452.228-71, 
Insurance Coverage, in solicitations and contracts which include the 
clause at FAR 52.228-5, Insurance--Work on a Government Installation. If 
property liability insurance is required, the contracting officer shall 
use the clause with its Alternate I.



Sec. 428.370  Government-owned vehicles operated in foreign countries.

    USDA is authorized to obtain insurance to cover liability incurred 
by any of its employees while acting within the scope of their 
employment and operating a Government-owned vehicle in a foreign 
country. (7 U.S.C. 2262).

                           PART 429 [RESERVED]

            PART 430_COST ACCOUNTING STANDARDS ADMINISTRATION

Sec.

Sec. 430.070 Definitions.

                 Subpart 430.2_CAS Program Requirements


Sec. 430.201 Contract requirements.

Sec. 430.201-5 Waiver.

Sec. 430.202 Disclosure requirements.

Sec. 430.202-2 Impracticality of submission.

Sec. 430.202-8 Subcontractor Disclosure Statements.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



Sec. 430.070  Definitions.

    ACO, as used in this part and in FAR part 30, means administrative 
contracting officer as described in FAR part 42.

                 Subpart 430.2_CAS Program Requirements



Sec. 430.201  Contract requirements.



Sec. 430.201-5  Waiver.

    The Senior Procurement Executive (SPE), without the authority to 
further redelegate, is authorized to request the Cost Accounting 
Standards Board to waive the application of the Cost Accounting 
Standards (CAS). Contracting officers shall prepare waiver requests in 
accordance with 48 CFR chapter 99 (Appendix B, FAR loose-leaf edition), 
subsection 9903.201-5, and submit them to the SPE through the head of 
the contracting activity (HCA).



Sec. 430.202  Disclosure requirements.



Sec. 430.202-2  Impracticality of submission.

    (a) The Secretary, without the power to delegate, is authorized to 
determine, in accordance with FAR part 99 (Appendix B), subsection 
9903.202-2, that the Disclosure Statement is impractical to secure and 
to authorize award without obtaining the Disclosure Statement.
    (b) The request for this determination is to be prepared in 
accordance with FAR part 99 (Appendix B), subsection 9903.202-2 and is 
to contain the proposed report to the CASB.
    (c) Requests for a determination under paragraph (a) of this section 
shall be prepared by the contracting officer and submitted through the 
HCA to the SPE for concurrence and submittal to the Secretary.



Sec. 430.202-8  Subcontractor Disclosure Statements.

    (a) The Secretary, without the power to redelegate, is authorized to 
determine that the Disclosure Statement for a subcontractor is 
impractical to secure and to authorize award without obtaining the 
Disclosure Statement.
    (b) Requests for this determination are to be prepared and forwarded 
as described in 430.202-2.

[[Page 134]]

            PART 431_CONTRACT COST PRINCIPLES AND PROCEDURES

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

                       Subpart 431.1_Applicability



Sec. 431.101  Objectives.

    (a) The SPE is designated as the official authorized to give advance 
approval of an individual deviation concerning cost principles.
    (b) The SPE is designated as the official authorized to give advance 
approval of a class deviation concerning cost principles after 
coordination with the Civilian Agency Acquisition Council.
    (c) Requests for advance approval of class deviations concerning 
cost principles must be submitted to the SPE through the HCA.

[61 FR 53646, Oct. 15, 1996]

                       PART 432_CONTRACT FINANCING

Sec.

Sec. 432.001 Definitions.

Sec. 432.003 Simplified acquisition procedures financing.

Sec. 432.006 Reduction or suspension of contract payments upon finding 
          of fraud.

Sec. 432.006-2 Definitions.

Sec. 432.006-3 Responsibilities.

Sec. 432.006-4 Procedures.

Sec. 432.006-5 Reporting.

Sec. 432.007 Contract financing payments.

          Subpart 432.1_Non-Commercial Item Purchase Financing


Sec. 432.102 Description of contract financing methods.

Sec. 432.103 Progress payments under construction contracts.

Sec. 432.111 Contract clauses for non-commercial purchases.

Sec. 432.113 Customary contract financing.

Sec. 432.114 Unusual contract financing.

            Subpart 432.2_Commercial Item Purchase Financing


Sec. 432.202 General.

Sec. 432.202-1 Policy.

Sec. 432.202-4 Security for Government financing.

Sec. 432.206 Solicitation provisions and contract clauses.

Sec. 432.207 Administration and payment of commercial financing 
          payments.

          Subpart 432.3_Loan Guarantees for Defense Production


Sec. 432.301 Definitions.

         Subpart 432.4_Advance Payments for Non-Commercial Items


Sec. 432.402 General.

Sec. 432.406 Letters of credit.

Sec. 432.407 Interest.

Sec. 432.412 Contract clause.

                      Subpart 432.6_Contract Debts


Sec. 432.601 Definition.

Sec. 432.616 Compromise actions.

                     Subpart 432.7_Contract Funding


Sec. 432.703 Contract funding requirements.

Sec. 432.703-3 Contracts crossing fiscal years.

Sec. 432.770 USDA specific funding limitations.

                   Subpart 432.8_Assignment of Claims


Sec. 432.802 Conditions.

Sec. 432.803 Policies.

Sec. 432.805 Procedure.

Sec. 432.806 Contract clauses.

                      Subpart 432.9_Prompt Payment


Sec. 432.904 Determining payment due dates.

                Subpart 432.10_Performance-Based Payments


Sec. 432.1007 Administration and payment of performance-based payments.

    Authority: 40 U.S.C. 121, 41 U.S.C. 421.

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



Sec. 432.001  Definitions.

    The agency contract finance office is the office, other than the 
office of the requisitioner, providing funding or performing funding 
record keeping for the contract action.
    Responsible fiscal authority is that officer in the agency contract 
finance office with the responsibility to ensure that adequate funds are 
available and usable for the intended purpose.



Sec. 432.003  Simplified acquisition procedures financing.

    (a) The chief of the contracting office may approve contract 
financing on a contract to be entered under the simplified acquisition 
procedures. Class approvals may not be made.

[[Page 135]]

    (b) The signed approval must contain the supporting rationale for 
the action and an estimate of the cost and/or risk to the government.



Sec. 432.006  Reduction or suspension of contract payments upon finding 

of fraud.



Sec. 432.006-2  Definitions.

    (a) The USDA remedy coordination official (RCO) is the Assistant 
Secretary for Administration.
    (b) For the purposes of this part, head of the agency means, 
exclusively, the Secretary or the Deputy Secretary.



Sec. 432.006-3  Responsibilities.

    When a contracting officer suspects that a request for advance, 
partial, or progress payment is based on fraud, the request shall be 
referred directly to the Office of Inspector General (OIG) in accordance 
with their instructions. A copy of the referral shall be submitted 
through the head of the contracting activity (HCA) to the Senior 
Procurement Executive (SPE).



Sec. 432.006-4  Procedures.

    (a) Immediately upon submittal of the referral described in 432.006-
3, the HCA and the contracting officer shall confer with the SPE and 
representatives of the OIG to discuss the potential for reduction or 
suspension of further payments based on the considerations listed in FAR 
32.006-4(d) (1) through (5).
    (b) The SPE will determine whether the contractor has contracts with 
other Departments or contracting activities and will involve them, as 
necessary, in the decision making process.
    (c) The OIG will determine the need for and the extent of an 
investigation.
    (d) Immediately upon completion of the OIG investigation (or, if 
deemed necessary by the OIG and the SPE, before completion of the 
investigation) the SPE, in coordination with the HCA, the contracting 
officer, and the OIG, shall make a report on the action to the RCO.
    (e) Upon receipt of the report, the RCO will submit a recommendation 
to the Secretary.
    (f) Upon receipt of the RCO's report the Secretary will:
    (1) Notify the contractor in writing, allowing 30 calendar days 
after receipt of the notice, that the contractor may submit in writing 
information and arguments in opposition to the recommendation; and
    (2) Consider the RCO's recommendation, the SPE's report, the 
response of the contractor, and any other relevant information in order 
to make an appropriate final determination.
    (g) This determination will be provided to the contractor and to the 
SPE for distribution to the agencies involved and for appropriate action 
under the determination.
    (h) The determination and the supporting documentation will be 
placed in the contract file(s) and a copy will be maintained by the SPE.
    (i) The contracting officer will advise the SPE of the actual date 
of the reduction or suspension action.
    (j) Not later than 150 calendar days after the actual date of the 
reduction or suspension action, the SPE will prepare for the RCO a 
review of the agency head's determination, and will propose a 
recommendation from the RCO to the agency head as to whether the 
reduction or suspension action should continue. The RCO will submit the 
recommendation (including a recommendation for the time period of a 
follow up review) to the agency head. This recommendation will be 
considered by the Secretary and handled as a final action described in 
paragraph (f) of this section.
    (k) The contract may not be closed nor final payment made prior to a 
final determination by the Secretary.



Sec. 432.006-5  Reporting.

    The annual report required by FAR 32.006-5 is to be prepared by the 
SPE and to be submitted to the Secretary within 90 calendar days after 
the end of the fiscal year. When signed by the Secretary, the report is 
to be maintained by the SPE.



Sec. 432.007  Contract financing payments.

    The HCA may prescribe, on a case-by-case basis, a shorter period for 
financing payments.

[61 FR 53646, Oct. 15, 1996. Redesignated at 70 FR 48, Jan. 3, 2005]

[[Page 136]]

          Subpart 432.1_Non-Commercial Item Purchase Financing



Sec. 432.102  Description of contract financing methods.

    Progress payments based on a percentage or stage of completion are 
authorized for use as a payment method under USDA contracts or 
subcontracts for construction, alteration or repair, and shipbuilding 
and conversion. Such payments also are authorized for service contracts, 
if the contracting officer determines that progress payments based on 
costs are not practicable and adequate safeguards are provided to 
administer progress payments based on a percentage or stage of 
completion. For all other contracts, progress payment provisions shall 
be based on costs except that the HCA may authorize progress payments 
based on a percentage or stage of completion on a case-by-case basis. 
Each authorization by the HCA shall include a determination and finding 
that progress payments based on costs cannot be employed practically and 
that there are adequate safeguards provided for the administration of 
progress payments based on a percentage or stage of completion.



Sec. 432.103  Progress payments under construction contracts.

    (a) When approving a progress payment under a construction contract, 
the contracting officer shall indicate the amount to be paid by the 
payment office and include in the contract file the rationale in support 
of the payment.
    (b) When a retainage is made on a progress payment under a 
construction contract, the contracting officer shall place in the 
contract file a written determination stating the reason(s) for the 
retainage.
    (c) When a progress payment under a construction contract has been 
approved, the amount to be paid, the amount of any retainage withheld, 
and the reason(s) for the retainage shall be provided to the contractor 
by the contracting officer in writing before the payment due date.
    (d) When the contractor, under a fixed-price construction contract, 
furnishes evidence to the contracting officer that the surety has been 
paid in full for bond premiums and requests reimbursement, the first 
subsequent progress payment shall include the total amount attributable 
to such bond premiums and the Government shall pay that amount in full. 
This amount paid for the bond premiums is not an amount in addition to 
the stated contract price.



Sec. 432.111  Contract clauses for non-commercial purchases.

    The contracting officer shall insert the clause at 452.232-70, 
Reimbursement for Bond Premiums--Fixed Price Construction Contracts, 
whenever the clause at FAR 52.232-5, Payments under Fixed-Price 
Construction Contracts, is used in a contract.

[61 FR 53646, Oct. 15, 1996, as amended at 63 FR 26995, May 15, 1998]



Sec. 432.113  Customary contract financing.

    The contracting officer may determine the necessity for customary 
contract financing. The determination and finding that customary 
contract financing is needed shall be placed in the contract file.



Sec. 432.114  Unusual contract financing.

    The HCA is authorized to approve unusual contract financing. The 
signed determination and finding supporting this approval shall be 
included in the contract file.

            Subpart 432.2_Commercial Item Purchase Financing



Sec. 432.202  General.



Sec. 432.202-1  Policy.

    In the case of unusual contract financing, the approval by the HCA 
shall be recorded in a determination and finding and maintained in the 
contract file.



Sec. 432.202-4  Security for Government financing.

    Prior to determining that an offeror's financial condition is 
adequate security, the contracting officer must obtain the concurrence 
of the funding activity in the proposed determination.

[[Page 137]]



Sec. 432.206  Solicitation provisions and contract clauses.

    The responsibility for administration of the liquidation provisions 
of a contract may not be transferred from the contracting officer.



Sec. 432.207  Administration and payment of commercial financing 

payments.

    The responsibility for receiving, reviewing, and approval of 
contract financing requests may not be transferred from the contracting 
officer.

          Subpart 432.3_Loan Guarantees for Defense Production



Sec. 432.301  Definitions.

    Within this subpart, the ``agency'' or ``guaranteeing agency'' is 
the ``head of the contracting activity'' (HCA) and may not be 
redelegated.

         Subpart 432.4_Advance Payments for Non-Commercial Items



Sec. 432.402  General.

    The HCA is designated as the individual responsible for making the 
findings and determination, and for approval of the contract terms 
concerning advance payments.



Sec. 432.406  Letters of credit.

    The HCA is designated as the individual responsible for coordination 
with the Department of Treasury concerning letters of credit.



Sec. 432.407  Interest.

    (a) The HCA is designated as the individual who may authorize, on a 
case by case basis, advance payments without interest for the contract 
types described in FAR 32.407(d)(1), (2), (3), and (4). The signed 
determination and findings supporting these authorizations shall be 
included in the contract files.
    (b) The SPE is designated as the individual who may authorize 
advance payments without interest other than those described in 
paragraph (a) of this section.



Sec. 432.412  Contract clause.

    The decision to use Alternates I or III to clause 52.232-12 must be 
supported by a determination and finding.

                      Subpart 432.6_Contract Debts



Sec. 432.601  Definition.

    Responsible official means the contracting officer.



Sec. 432.616  Compromise actions.

    Compromise of a debt within the proceedings under appeal to the 
Civilian Board of Contract Appeals is the responsibility of the 
contracting officer.

[72 FR 31438, June 7, 2007]

                     Subpart 432.7_Contract Funding



Sec. 432.703  Contract funding requirements.



Sec. 432.703-3  Contracts crossing fiscal years.

    Funds appropriated to USDA may be used for one-year contracts which 
are to be performed in two fiscal years so long as the total amount for 
such contracts is obligated in the year for which the funds are 
appropriated (7 U.S.C. 2209c).



Sec. 432.770  USDA specific funding limitations.

    (a) The USDA is authorized to subscribe for newspapers as may be 
necessary to carry out its authorized work: Provided, that such 
subscriptions shall not be made unless provision is made therefor in the 
applicable appropriation and the cost thereof is not in excess of 
limitations prescribed therein (7 U.S.C. 2258).
    (b) The expenditure of any USDA appropriation for any consulting 
service through any contract, pursuant to section 3109 of Title 5 of the 
U.S. Code shall be limited to those contracts where such expenditures 
are a matter of public record and available for public inspection, 
except where otherwise provided under existing law, or under existing 
Executive Order issued pursuant to existing law (7 U.S.C. 2225a).

[[Page 138]]

                   Subpart 432.8_Assignment of Claims



Sec. 432.802  Conditions.

    Written notices of assignment and a true copy of the assigned 
instrument are to be sent to the contracting officer rather than the 
agency head. Other copies are distributed as directed in FAR 32.802.



Sec. 432.803  Policies.

    The HCA may make a determination of need to include a no-setoff 
commitment in a contract.



Sec. 432.805  Procedure.

    The information described in FAR 32.805 shall be filed with the 
contracting officer.



Sec. 432.806  Contract clauses.

    The contracting officer may make the determination whether to 
include the clause at FAR 52.232-23 in any purchase order expected to 
exceed the micro-purchase threshold.

                      Subpart 432.9_Prompt Payment



Sec. 432.904  Determining payment due dates.

    The payment terms for supplies and services on the Procurement List 
and provided by a Javits-Wagner-O'Day Act participating nonprofit agency 
are governed by FAR 8.709.

[61 FR 53646, Oct. 15, 1996. Redesignated at 70 FR 48, Jan. 3, 2005]

                Subpart 432.10_Performance-Based Payments



Sec. 432.1007  Administration and payment of performance-based payments.

    The responsibility for receiving, reviewing, and approval of 
performance-based payment requests may not be transferred from the 
contracting officer.

                 PART 433_PROTESTS, DISPUTES AND APPEALS

                         Subpart 433.1_Protests

Sec.

Sec. 433.102 General.

Sec. 433.103 Protests to the agency.

Sec. 433.104 [Reserved]

                   Subpart 433.2_Disputes and Appeals


Sec. 433.203 Applicability.

Sec. 433.203-70 Civilian Board of Contract Appeals.

Sec. 433.209 Suspected fraudulent claims.

    Authority: 40 U.S.C. 121, 41 U.S.C. 421.

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

                         Subpart 433.1_Protests



Sec. 433.102  General.

    (a) The Senior Procurement Executive (SPE) is responsible for 
coordinating the handling of bid protests lodged with the Government 
Accountability Office (GAO).
    (b) The head of the contracting activity (HCA), on a non-delegable 
basis, may resolve protests and authorize reimbursement of costs in 
accordance with FAR 33.102(b).

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 48, Jan. 3, 2005]



Sec. 433.103  Protests to the agency.

    (a) Actual or prospective bidders or offerors may file protests 
either with the HCA, as provided by 433.102(b), or with the contracting 
officer. Protesters who file protests with the HCA shall furnish a 
complete copy to the contracting officer no later than 1 day after the 
protest is filed with the HCA.
    (b) When a protest is received, the adjudicating official shall take 
prompt action towards resolution and notify the protester in writing of 
the action taken. The written final decision shall include a paragraph 
substantially as follows:

    This decision shall be final and conclusive unless a further written 
notice of protest is filed with the Government Accountability Office in 
accordance with 4 CFR part 21. Neither the filing of a protest with USDA 
nor the filing of a protest with the Government Accountability Office 
affects your right to file an action in a district court of the United 
States or the United States Court of Federal Claims.

[61 FR 53646, Oct. 15, 1996, as amended at 70 FR 48, Jan. 3, 2005]

[[Page 139]]



Sec. 433.104  [Reserved]

                   Subpart 433.2_Disputes and Appeals



Sec. 433.203  Applicability.

    The Assistant Secretary for Administration is authorized to 
determine the applicability of the Contract Disputes Act to contracts 
with foreign governments pursuant to FAR 33.203.



Sec. 433.203-70  Civilian Board of Contract Appeals.

    The organization, jurisdiction, and functions of the Civilian Board 
of Contract Appeals, together with its Rules of Procedure, are set out 
in 48 CFR part 6101.

[72 FR 31438, June 7, 2007]



Sec. 433.209  Suspected fraudulent claims.

    The contracting officer shall refer all matters related to suspected 
fraudulent claims by a contractor under the conditions in FAR 33.209 to 
the Office of Inspector General for additional action or investigation.

[[Page 140]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

                    PART 434_MAJOR SYSTEM ACQUISITION

                          Subpart 434.0_General

Sec.

Sec. 434.001 Definitions.

Sec. 434.002 Policy.

Sec. 434.003 Responsibilities.

Sec. 434.004 Acquisition strategy.

Sec. 434.005 General requirements.

Sec. 434.005-6 Full production.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 70 FR 49, Jan. 3, 2005, unless otherwise noted.

                          Subpart 434.0_General



Sec. 434.001  Definitions.

    Pursuant to OMB Circular No. A-109 (A-109) and the definition at FAR 
2.101, within USDA, a system shall be considered a major system if:
    (a) The total acquisition costs (for information technology, life 
cycle costs) are estimated to be $50 million or more, or
    (b) The system, regardless of estimated acquisition or life cycle 
costs, has been specifically designated to be a major system by the USDA 
Acquisition Executive or by the Major Information Technology Systems 
Executive.



Sec. 434.002  Policy.

    In addition to the policy guidance at FAR 34.002 and other parts of 
the FAR, the policies outlined in paragraph 6 of A-109 should serve as 
guidelines for all contracting activities in planning and developing 
systems, major or otherwise.



Sec. 434.003  Responsibilities.

    (a) The Secretary of Agriculture or other designated USDA key 
executive is responsible for making four key decisions in each major 
system acquisition process. These are listed in paragraph 9 of A-109 and 
elaborated on in paragraphs 10 through 13. The key executives of USDA 
(Secretary, Deputy Secretary, Under Secretaries and Assistant 
Secretaries) individually or as a group will participate in this 
decision making process.
    (b) The Chief Information Officer (CIO) is the Major Information 
Technology Systems Executive. For acquisitions of information 
technology, the CIO will ensure that A-109 is implemented in USDA and 
that the management objectives of the Circular are realized. The CIO is 
responsible for designating the program manager for each major 
information technology system acquisition, designating an acquisition to 
be a major information technology system acquisition, and approving the 
written charter and project control system for each major information 
technology system acquisition.
    (c) The Assistant Secretary for Administration (ASA) is the USDA 
Acquisition Executive for major system acquisitions other than 
acquisitions of information technology. The ASA will ensure that A-109 
is implemented in USDA and that the management objectives of the 
Circular are realized. The ASA is responsible for designating the 
program manager for each major system acquisition, designating an 
acquisition to be a major system acquisition, and approving the written 
charter and project control system for each major system acquisition.
    (d) Heads of contracting activities must:
    (1) Ensure compliance with the requirements of A-109, FAR Part 34 
and AGAR Part 434.
    (2) Ensure that potential major system acquisitions are brought to 
the attention of the USDA Acquisition Executive or the Major Information 
Technology Systems Executive, as appropriate.
    (3) Recommend qualified candidates for designation as program 
managers for each major system acquisition within their jurisdiction.
    (4) Ensure that program managers fulfill their responsibilities and 
discharge their duties.
    (5) Cooperate with the ASA and Major Information.
    Technology Systems Executive in implementing the requirements of A-
109.

[[Page 141]]

    (e) The program manager is responsible for planning and executing 
the major system acquisition, ensuring appropriate coordination with the 
USDA Acquisition Executive and Major Information Technology Systems 
Executive and other key USDA executives.



Sec. 434.004  Acquisition strategy.

    (a) The program manager will develop, in coordination with the 
Acquisition Executive or Major Information Technology Systems Executive, 
a written charter outlining the authority, responsibility, 
accountability, and budget for accomplishing the proposed objective.
    (b) The program manager will develop, subject to the approval of the 
Acquisition Executive or Major Information Technology Systems Executive, 
a project control system to schedule, monitor, and regularly report on 
all aspects of the project. The control system shall establish reporting 
periods and milestones consistent with the key decisions listed in 
paragraph 9 of A-109.
    (c) Upon initiation of the project, the program manager will report 
regularly to the Acquisition Executive or Major Information Technology 
Systems Executive.
    (d) Specific procedures and requirements for information technology 
systems are included in the USDA Information Technology Capital Planning 
and Investment Control Guide which can be accessed on the USDA OCIO Web 
site at http://www.ocio.usda.gov.



Sec. 434.005  General requirements.



Sec. 434.005-6  Full production.

    The Secretary or the USDA key executive designated by the Secretary 
for the specific program is the agency head for the purposes of FAR 
34.005-6.

              PART 435_RESEARCH AND DEVELOPMENT CONTRACTING

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).



Sec. 435.010  Scientific and technical reports.

    Research and development contracts shall contain a provision 
requiring that the contractor send copies of all scientific and 
technical reports to the National Technical Information Service at the 
address indicated in FAR 35.010(b). The release of research and 
development contract results to other government activities and to the 
private sector is subject to the provisions of FAR subpart 4.4.

[61 FR 53646, Oct. 15, 1996]

         PART 436_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

      Subpart 436.2_Special Aspects of Contracting for Construction

Sec.

Sec. 436.201 Evaluation of contractor performance.

Sec. 436.203 Government estimate of construction costs.

Sec. 436.204 Disclosure of the magnitude of construction projects.

Sec. 436.205 Statutory cost limitations.

Sec. 436.209 Construction contracts with architect-engineer firms.

Sec. 436.213 Special procedures for sealed bidding in construction 
          contracting.

Sec. 436.213-2 Presolicitation notices.

Subpart 436.3 [Reserved]

                     Subpart 436.5_Contract Clauses


Sec. 436.500 Scope of subpart.

Sec. 436.571 Prohibition against the use of lead-based paint.

Sec. 436.572 Use of premises.

Sec. 436.573 Archeological or historic sites.

Sec. 436.574 Control of erosion, sedimentation, and pollution.

Sec. 436.575 Maximum workweek-construction schedule.

Sec. 436.576 Samples and certificates.

Sec. 436.577 Emergency response.

Sec. 436.578 [Reserved]

Sec. 436.579 Opted timber sale road requirements.

                Subpart 436.6_Architect-Engineer Services


Sec. 436.601 Policy.

Sec. 436.601-3 Applicable contracting procedures.

Sec. 436.602 Selection of firms for architect-engineer contracts.

Sec. 436.602-1 Selection criteria.

Sec. 436.602-2 Evaluation boards.

Sec. 436.602-3 Evaluation board functions.

Sec. 436.602-4 Selection authority.

Sec. 436.602-5 Short selection process for contracts not to exceed the 
          simplified acquisition threshold.

Sec. 436.603 Collecting data on and appraising firms' qualifications.

[[Page 142]]


Sec. 436.604 Performance evaluation.

Sec. 436.605 Government cost estimate for architect-engineer work.

Sec. 436.609 Contract clauses.

Sec. 436.609-1 Design within funding limitations.

Sec. 436.670 Firms ineligible for award--construction.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

      Subpart 436.2_Special Aspects of Contracting for Construction



Sec. 436.201  Evaluation of contractor performance.

    Preparation of performance evaluation reports. In addition to the 
requirements of FAR 36.201, performance evaluation reports shall be 
prepared for indefinite-delivery type contracts when either the contract 
maximum or the contracting activity's reasonable estimate of services to 
be ordered exceeds $500,000.00. For these contracts, performance 
evaluation reports shall be prepared for each order at the time of final 
acceptance of the work under the order.



Sec. 436.203  Government estimate of construction costs.

    For acquisitions using sealed bid procedures, the contracting 
officer may disclose the overall amount of the Government's estimate of 
construction costs following identification of the responsive bid most 
advantageous to the Government; verification of that bid's price 
reasonableness; and verification of the bidder's responsibility. For 
acquisitions using other than sealed bid procedures (e.g., negotiation), 
the contracting officer may disclose the overall amount of the estimate 
after contract award.



Sec. 436.204  Disclosure of the magnitude of construction projects.

    In the case of indefinite-delivery type contracts, the reasonable 
estimate of work to be done or the maximum in the solicitation, both 
including all options, is to be used to select the price range. 
Contracting officers may elect to use both a price range for the base 
period of services and the total, inclusive of options, to best describe 
the magnitude of the solicitation.



Sec. 436.205  Statutory cost limitations.

    (a) When it appears that funds available for a project may be 
insufficient for all the desired features of construction, the 
contracting officer may provide in the solicitation for a base bid item 
covering the work generally as specified and for one or more additive or 
deductive bid items which progressively add or omit specified features 
of the work in a stated order of priority. In this case, the contracting 
officer shall insert the provision at 452.236-70, Additive or Deductive 
Items, in solicitations for construction.
    (b) In the alternative to the process in paragraph (a) of this 
section, the contracting officer may use the policies and procedures 
found in FAR 17.2.



Sec. 436.209  Construction contracts with architect-engineer firms.

    The head of the contracting activity (HCA) is authorized to approve 
the award of a contract to construct a project, in whole or in part, to 
the firm (inclusive of its subsidiaries or affiliates) that designed the 
project.



Sec. 436.213  Special procedures for sealed bidding in construction 
          contracting.



Sec. 436.213-2  Presolicitation notices.

    The authority to waive a presolicitation notice is restricted to the 
HCA.

[63 FR 26995, May 15, 1998]

Subpart 436.3 [Reserved]

                     Subpart 436.5_Contract Clauses



Sec. 436.500  Scope of subpart.

    This subpart prescribes clauses for insertion in USDA solicitations 
and contracts for construction and for dismantling, demolition, or 
removal of improvements or structures. The contracting officer shall use 
the clauses as prescribed, in contracts that exceed the simplified 
acquisition threshold. The contracting officer may use the clauses if 
the contract amount is expected to be within the simplified acquisition 
threshold.

[[Page 143]]



Sec. 436.571  Prohibition against the use of lead-based paint.

    The contracting officer shall insert the clause at 452.236-71, 
Prohibition Against the Use of Lead-Based Paint, in solicitations and 
contracts, if the work involves construction or rehabilitation 
(including dismantling, demolition, or removal) of residential 
structures. This clause may be used in contracts for other than 
residential structures.



Sec. 436.572  Use of premises.

    The contracting officer shall insert the clause at 452.236-72, Use 
of Premises, if the contractor will be permitted to use land or premises 
administered by USDA.



Sec. 436.573  Archeological or historic sites.

    The contracting officer shall insert the clause at 452.236-73, 
Archeological or Historic Sites, if the contractor will be working in an 
area where such sites may be found. Use of the clause is optional in 
service contracts for on-the-ground work, e.g. reforestation, 
silvicultural, land stabilization, or other agricultural-related 
projects.



Sec. 436.574  Control of erosion, sedimentation, and pollution.

    The contracting officer shall insert the clause at 452.236-74, 
Control of Erosion, Sedimentation and Pollution, if there is a need for 
applying environmental controls in the performance of work. Use of the 
clause is optional in service contracts for on-the-ground e.g., 
reforestation, silvicultural, land stabilization, or other agricultural-
related projects.



Sec. 436.575  Maximum workweek-construction schedule.

    The contracting officer shall insert the clause at 452.236-75, 
Maximum Workweek-Construction Schedule, if the clause at FAR 52.236-15 
is used and the contractor's work schedule is restricted by access to 
the facility or must be coordinated with the schedule of contract 
administration personnel.

[63 FR 26996, May 15, 1998]



Sec. 436.576  Samples and certificates.

    The contracting officer shall insert the clause at 452.236-76, 
Samples and Certificates, in all contracts.



Sec. 436.577  Emergency response.

    The contracting officer may insert the clause at 452.236-77, 
Emergency Response, in construction contracts awarded for the Forest 
Service.



Sec. 436.578  [Reserved]



Sec. 436.579  Opted timber sale road requirements.

    The contracting officer shall insert the clause at 452.236-79, Opted 
Timber Sale Road Requirements, in road construction contracts resulting 
from a timber sale turnback.

                Subpart 436.6_Architect-Engineer Service



Sec. 436.601  Policy.



Sec. 436.601-3  Applicable contracting procedures.

    The technical official's listing of areas where recovered materials 
cannot be used shall be referred to the contracting activity's official 
designated in accordance with FAR 23.404. A copy of the listing and of 
any approval or disapproval by that official is to be retained in the 
solicitation file.



Sec. 436.602  Selection of firms for architect-engineer contracts.



Sec. 436.602-1  Selection criteria.

    The HCA is authorized to approve the use of design competition under 
the conditions in FAR 36.602-1(b).



Sec. 436.602-2  Evaluation boards.

    HCA's shall establish written procedures for providing permanent or 
ad hoc architect-engineer evaluation boards as prescribed in FAR 36.602-
2. The procedures may provide for the appointment of private 
practitioners of architecture, engineering, or related professions when 
such action is determined by the HCA to be essential to meet the 
Government's minimum needs.

[[Page 144]]



Sec. 436.602-3  Evaluation board functions.

    The selection report required in FAR 36.602-3(d) shall be prepared 
for the approval of the HCA. The HCA may authorize an acquisition 
official above the level of the contracting officer to execute the 
required approval.



Sec. 436.602-4  Selection authority.

    (a) The HCA shall serve as the selection authority in accordance 
with FAR 36.602-4. The HCA may authorize an acquisition official above 
the level of the contracting officer to serve as the selection 
authority.
    (b) A copy of the final selection, inclusive of the supporting 
documents, shall be provided to the contracting officer and maintained 
in the solicitation file.



Sec. 436.602-5  Short selection process for contracts not to exceed the 

simplified acquisition threshold.

    The HCA may include either or both procedures in FAR 36.602-5 in the 
procedures for evaluation boards.



Sec. 436.603  Collecting data on and appraising firms' qualifications.

    (a) HCA's which require architect-engineer services shall establish 
procedures to comply with the requirements of FAR 36.603.
    (b) The procedures shall include a list of names, addresses, and 
phone numbers of offices or boards assigned to maintain architect-
engineer qualification data files. The list shall be updated annually.



Sec. 436.604  Performance evaluation.

    Preparation of performance evaluation reports. (a) In addition to 
the requirements of FAR 36.604, performance evaluation reports shall be 
prepared for indefinite-delivery type contracts when either the contract 
maximum or the contracting activities reasonable estimate of services to 
be ordered exceeds $25,000.00. For these contracts, performance 
evaluation reports shall be prepared for each order at the time of final 
acceptance of the work under the order.
    (b) The contracting officer may require a performance evaluation 
report on the work done by the architect-engineer after the completion 
of or during the construction of the designed project.



Sec. 436.605  Government cost estimate for architect-engineer work.

    The contracting officer may release the Government's total cost 
estimate in accordance with FAR 36.605(b).



Sec. 436.609  Contract clauses.



Sec. 436.609-1  Design within funding limitations.

    (a) Should the head of the contracting activity appoint a designee 
to make the determination in FAR 36.609-1(c)(1), the appointment may be 
to one no lower than the official authorized to commit program funds for 
the work being acquired.
    (b) The contracting officer, with the advice of appropriate 
technical representatives, may make the determination in FAR 36.609-
1(c)(2) or (3).
    (c) A copy of the determinations described in paragraph (b) and (c) 
of this section shall be maintained in the contract file.



Sec. 436.670  Firms ineligible for award--construction.

    The contracting officer shall insert the clause at 452.236-80, Firms 
Ineligible For Award--Construction, in the contract for architect-
engineering services except as provided in FAR 36.209 and AGAR 436.209.

                      PART 437_SERVICE CONTRACTING

                 Subpart 437.1_Service Contracts_General

Sec.

Sec. 437.104 Personal services contracts.

Sec. 437.110 Solicitation provisions and contract clauses.

             Subpart 437.2_Advisory and Assistance Services


Sec. 437.203 Policy.

Sec. 437.204 Guidelines for determining availability of personnel.

Sec. 437.270 Solicitation provisions and contract clauses.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

[[Page 145]]

                 Subpart 437.1_Service Contracts_General



Sec. 437.104  Personal services contracts.

    USDA has the following specific statutory authorities to contract 
for personal services:
    (a) Section 706(a) of the Organic Act of 1944 (7 U.S.C. 2225) 
authorizes contracting with persons or organizations on a temporary 
basis, without regard to civil service compensation classification 
standards in 5 U.S.C., Chapter 51 and Subchapter III of Chapter 53, 
Provided:
    (1) That no expenditures shall be made unless specifically provided 
for in the applicable appropriation, and
    (2) Expenditures do not exceed any limitations prescribed in the 
appropriation.
    (b) 7 U.S.C. 1627 authorizes the Secretary of Agriculture to 
contract with technically qualified persons, firms or organizations to 
perform research, inspection, classification, technical, or other 
special services, without regard to the civil-service laws, Provided: it 
is for a temporary basis and for a term not to exceed six months in any 
fiscal year.



Sec. 437.110  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-70, Loss Damage, Destruction or Repair, in 
contracts for equipment rental, whether the equipment is furnished with 
or without operator.
    (b) The contracting officer shall insert a provision substantially 
the same as the clause at 452.237-71, Pre-Bid/Pre-Proposal Conference, 
in all solicitations if a conference with prospective offerors will be 
held prior to the submittal of bids or proposals.
    (c) The contracting officer shall insert the provision at 452.237-
73, Equipment Inspection visit, in solicitations if work is to be done 
on Government equipment and an offeror's inspection is encouraged for an 
understanding of the work to be performed prior to submittal of bids or 
proposals.
    (d) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-74, Key Personnel, in contracts if 
contract performance requires identification of the contractor's key 
personnel.
    (e) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-75, Restrictions Against Disclosure, in 
service contracts (including architect-engineer contracts) requiring 
restrictions on release of information developed or obtained in 
connection with performance of the contract.

             Subpart 437.2_Advisory and Assistance Services



Sec. 437.203  Policy.

    Contracting for advisory and assistance services is subject to the 
policy and procedures in Departmental Regulations (5000 series).



Sec. 437.204  Guidelines for determining availability of personnel.

    The head of the contracting activity (HCA) is authorized to approve 
the use of non-Government evaluators in proposal evaluation. Each such 
decision shall be supported by a written determination in accordance 
with FAR 37.204.

[64 FR 52675, Sept. 30, 1999]



Sec. 437.270  Solicitation and contract clauses.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-76, Progress Reporting, in all contracts 
for advisory and assistance services. It may also be used in other 
service contracts.
    (b) The contracting officer shall insert a clause substantially the 
same as the clause at 452.237-78, Contracts with Consulting Firms for 
Services, in solicitations and contracts for consulting services which 
prohibit follow-on contracts with the contracting firm.

                           PART 438 [RESERVED]

             PART 439_ACQUISITION OF INFORMATION TECHNOLOGY

                          Subpart 439.1_General

Sec.

Sec. 439.101 Policy.


[[Page 146]]


    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

                          Subpart 439.1_General



Sec. 439.101  Policy.

    (a) In addition to policy and regulatory guidance contained in the 
FAR and AGAR:
    (1) The USDA Information Technology Capital Planning and Investment 
Control Guide (CPIC) establishes requirements for the acquisition of 
information technology.
    (2) Specific thresholds at which USDA Office of the Chief 
Information Officer Information Technology Acquisition Approval is 
required have been established.
    (3) The procurement authority delegated to USDA Agencies is 
established in Departmental Regulations 5000 series.
    (4) The CPIC Guide and USDA CIO policy and procedural guidance are 
available on the USDA OCIO Web site at http://www.ocio.usda.gov. Notices 
of changes in the Information Technology Acquisition Approval Thresholds 
are also promulgated by AGAR Advisory.
    (b) Acquisition of on-line courseware libraries and learning 
management system services requires specific approval of the ASA and 
CIO. Information regarding the specific approval requirements and 
processes is promulgated by AGAR Advisory.

[70 FR 49, Jan. 3, 2005]

                           PART 440 [RESERVED]

                PART 441_ACQUISITION OF UTILITY SERVICES

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

                Subpart 441.2_Acquiring Utility Services



Sec. 441.201  Policy.

    As used in FAR 41.201(d)(2)(i) and 41.201(d)(3) the Federal agency 
head designee is the head of the contracting activity.

[61 FR 53646, Oct. 15, 1996]

[[Page 147]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

                    PART 442_CONTRACT ADMINISTRATION

  Subpart 442.1_Interagency Contract Administration and Audit Services

Sec.

Sec. 442.102 Procedures.

            Subpart 442.15_Contractor Performance Information


Sec. 442.1502 Policy.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

  Subpart 442.1_Interagency Contract Administration and Audit Services



Sec. 442.102  Procedures.

    (a) The Office of Inspector General (OIG), Audit Division, has 
established a cross-servicing arrangement with the Defense Contract 
Audit Agency (DCAA) to provide contract audit services required by the 
FAR.
    (b) All contract audit services required by contracting officers, 
except those which can be accomplished in-house, shall be coordinated 
through the cognizant OIG Regional Inspector General--Auditing (RIG-A). 
Cognizance is determined on the basis of the contractor's location. 
There is no charge for DCAA audit services coordinated through OIG.
    (c) In order to ensure compliance with this requirement and to 
evaluate the results of audits, contracting officers shall forward to 
the RIG-A copies of all price negotiation memoranda prepared for 
contracts and contract modifications in excess of $500,000.

            Subpart 442.15_Contractor Performance Information



Sec. 442.1502  Policy.

    The Contractor Performance System (CPS), developed by the National 
Institutes of Health, is designated as the single USDA-wide system for 
maintaining contractor performance/evaluation information. Use of the 
CPS is mandatory. As a minimum, the CPS shall be accessed for contractor 
past performance information as part of proposal evaluation in 
accordance with FAR subpart 15.3, and information resulting from the 
evaluation of contractor performance in accordance with FAR subpart 
42.15 shall be entered into and maintained in this system. The CPS is a 
part of the USDA Acquisition Toolkit which can be accessed from the USDA 
Procurement Homepage at http://www.usda.gov/procurement/.

[66 FR 49867, Oct. 1, 2001]

                        PARTS 443-444 [RESERVED]

                      PART 445_GOVERNMENT PROPERTY

       Subpart 445.3_Providing Government Property to Contractors

Sec.

Sec. 445.302 Providing facilities.

Sec. 445.302-1 Policy.

     Subpart 445.4_Contractor Use and Rental of Government Property


Sec. 445.403 Rental--Use and Charges clause.

Sec. 445.407 Non-Government use of plant equipment.

Subpart 445.6 [Reserved]

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

       Subpart 445.3_Providing Government Property to Contractors



Sec. 445.302  Providing facilities.



Sec. 445.302-1  Policy.

    Heads of contracting activities (HCA's) are authorized to make 
determinations for providing facilities to a contractor as prescribed in 
FAR 45.302-1(a)(4).

[[Page 148]]

     Subpart 445.4_Contractor Use and Rental of Government Property



Sec. 445.403  Rental--Use and Charges clause.

    HCA's are authorized to make determinations for charging rent on the 
basis of use under the Use and Charges clause in FAR 52.245-9 as 
prescribed in FAR 45.403(a).



Sec. 445.407  Non-Government use of plant equipment.

    Requests for non-Government use of plant equipment as prescribed in 
FAR 45.407 shall be submitted by the HCA to the Senior Procurement 
Executive (SPE) for approval.

Subpart 445.6 [Reserved]

                       PART 446_QUALITY ASSURANCE

    Authority: 5 U.S.C. 30 and 40 U.S.C. 486(c).

                     Subpart 446.3_Contract Clauses



Sec. 446.370  Inspection and acceptance.

    The Contracting Officer shall insert the clause at 452.246-70, 
Inspection and Acceptance, in contracts where inspection and acceptance 
will be performed at the same location. The clause with its Alternate I 
is for use when inspection and acceptance will be performed at different 
locations.

[61 FR 53646, Oct. 15, 1996]

                         PART 447_TRANSPORTATION

            Subpart 447.3_Transportation in Supply Contracts

Sec.

Sec. 447.302 Place of delivery--F.O.B. point.

Sec. 447.305 Solicitation provisions, contract clauses, and 
          transportation factors.

Sec. 447.305-10 Packing, marking, and consignment instructions.

    Authority: 5 U.S.C. 30 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

            Subpart 447.3_Transportation in Supply Contracts



Sec. 447.302  Place of delivery--F.O.B. point.

    The contracting officer shall insert a clause substantially the same 
as the clause at 452.247-70, Delivery Location, in supply contracts when 
it is necessary to specify delivery locations. If appropriate, the 
clause may reference an attachment which lists various delivery 
locations and other delivery details (e.g., quantities to be delivered 
to each location, etc.).



Sec. 447.305  Solicitation provisions, contract clauses, and 

transportation factors.



Sec. 447.305-10  Packing, marking, and consignment instructions.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 452.247-71, Marking Deliverables, in solicitations 
and contracts if special marking on deliverables (other than reports) 
are required.
    (b) The contracting officer shall insert the clause at 452.247-72, 
Packing for Domestic Shipment, in contracts when item(s) will be 
delivered for immediate use to a destination in the continental United 
States; when the material specification or purchase description does not 
provide preservation, packaging, packing, and/or marking requirements; 
and/or when the requiring activity has not cited a specific 
specification for packaging.
    (c) The contracting officer shall insert the clause at 452.247-73, 
Packing for Overseas Shipment, in contracts when item(s) will be 
delivered to an overseas destination for immediate use, the material 
specification does not specify packing levels, and the required activity 
has not specified such requirements.

                           PART 448 [RESERVED]

[[Page 149]]

                    PART 449_TERMINATION OF CONTRACTS

                    Subpart 449.1_General Principles

Sec.

Sec. 449.106 Fraud or other criminal conduct.

Sec. 449.111 Review of proposed settlements.

                  Subpart 449.4_Termination for Default


Sec. 449.402 Termination of fixed-price contracts for default.

Sec. 449.402-3 Procedure for default.

               Subpart 449.5_Contract Termination Clauses


Sec. 449.501 General.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

                    Subpart 449.1_General Principles



Sec. 449.106  Fraud or other criminal conduct.

    (a) If the contracting officer suspects fraud or other criminal 
conduct a written report documenting the facts shall be submitted by the 
head of the contracting activity (HCA) to the Office of Inspector 
General. Copies of documents or other information connected with the 
suspected fraud or criminal conduct shall be provided with the report. 
Concurrently, a copy of the report shall also be submitted to the Senior 
Procurement Executive.
    (b) Depending on the findings of the Office of Inspector General, 
the HCA may initiate suspension or debarment action as prescribed in FAR 
part 9.4 and part 409.4.



Sec. 449.111  Review of proposed settlements.

    Proposed settlement agreements shall be reviewed and approved in 
accordance with contracting activity procedures.

                  Subpart 449.4_Termination for Default



Sec. 449.402  Termination of fixed-price contracts for default.



Sec. 449.402-3  Procedure for default.

    In addition to the requirements of FAR 49.402-3(g), the notice of 
termination shall contain instructions regarding the disposition of any 
Government property in the possession of the contractor (see FAR 45.508-
1) and, in the case of construction contracts, such materials, 
appliances, and structures as may be on the site of the construction 
work. The notice shall also contain a statement concerning the liability 
of the contractor or its surety for any liquidated damages (see FAR 
49.402-7).

               Subpart 449.5_Contract Termination Clauses



Sec. 449.501  General.

    Use of special purpose termination clauses pursuant to the authority 
of FAR 49.501 shall be approved in advance by the HCA.

               PART 450_EXTRAORDINARY CONTRACTUAL ACTIONS

Sec.

Sec. 450.001 Definitions.

Subpart 450.1 [Reserved]

  Subpart 450.2_Delegation of and Limitations on Exercise of Authority


Sec. 450.201 Delegation of authority.

                   Subpart 450.3_Contract Adjustments


Sec. 450.303 Contract adjustment.

Sec. 450.303-1 Contractor requests.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



Sec. 450.001  Definitions.

    Approving authority, as used in this part, means the Assistant 
Secretary for Administration.
    Secretarial level, as used in this part means the Assistant 
Secretary for Administration.

[[Page 150]]

Subpart 450.1 [Reserved]

  Subpart 450.2_Delegation of and Limitations on Exercise of Authority



Sec. 450.201  Delegation of authority.

    The Assistant Secretary for Administration is authorized to approve 
all actions under FAR part 50 except indemnification actions listed in 
FAR 50.201(d) which must be approved by the Secretary, without power of 
delegation.

                   Subpart 450.3_Contract Adjustments



Sec. 450.303  Contract adjustment.



Sec. 450.303-1  Contractor requests.

    Contractor requests shall be submitted to the contracting officer.

                           PART 451 [RESERVED]

[[Page 151]]

                     SUBCHAPTER H_CLAUSES AND FORMS

          PART 452_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

              Subpart 452.2_Texts of Provisions and Clauses

Sec.

Sec. 452.204-70 Inquiries.

Sec. 452.211-70 Brand Name or Equal.

Sec. 452.211-71 Equal Products Offered.

Sec. 452.211-72 Statement of Work/Specifications.

Sec. 452.211-73 Attachments to Statement of Work/Specifications.

Sec. 452.211-74 Period of Performance.

Sec. 452.211-75 Effective Period of the Contract.

Sec. 452.214-70 Award by Lot.

Sec. 452.215-71 Instructions for the Preparation of Technical and 
          Business Proposals.

Sec. 452.215-72 Amendments to Proposals.

Sec. 452.215-73 Post Award Conference.

Sec. 452.216-70 Award Fee.

Sec. 452.216-71 Base Fee and Award Fee Proposal.

Sec. 452.216-72 Evaluation Quantities--Indefinite-Delivery Contract.

Sec. 452.216-73 Minimum and Maximum Contract Amounts.

Sec. 452.216-74 Ceiling Price.

Sec. 452.216-75 Letter Contract.

Sec. 452.219-70 Size Standard and NAICS Code Information.

Sec. 452.224-70 Confidentiality of Information.

Sec. 452.226-70--452.226-72 [Reserved]

Sec. 452.228-70 Alternative Forms of Security.

Sec. 452.228-71 Insurance Coverage.

Sec. 452.232-70 Reimbursement for Bond Premiums--Fixed-Price 
          Construction Contracts.

Sec. 452.236-70 Additive or Deductive Items.

Sec. 452.236-71 Prohibition Against the Use of Lead-Based Paint.

Sec. 452.236-72 Use of Premises.

Sec. 452.236-73 Archaeological or Historic Sites.

Sec. 452.236-74 Control of Erosion, Sedimentation, and Pollution.

Sec. 452.236-75 Maximum Workweek--Construction Schedule.

Sec. 452.236-76 Samples and Certificates.

Sec. 452.236-77 Emergency Response.

Sec. 452.236-78 [Reserved]

Sec. 452.236-79 Opted Timber Sale Road Requirements.

Sec. 452.236-80 Firms Ineligible for Award--Construction.

Sec. 452.237-70 Loss, Damage, Destruction or Repair.

Sec. 452.237-71 Pre-Bid/Pre-Proposal Conference.

Sec. 452.237-73 Equipment Inspection Visit.

Sec. 452.237-74 Key Personnel.

Sec. 452.237-75 Restrictions Against Disclosure.

Sec. 452.237-76 Progress Reporting.

Sec. 452.237-78 Contracts with Consulting Firms for Services.

Sec. 452.246-70 Inspection and Acceptance.

Sec. 452.247-70 Delivery Location.

Sec. 452.247-71 Marking Deliverables.

Sec. 452.247-72 Packing for Domestic Shipment.

Sec. 452.247-73 Packing for Overseas Shipment.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.

              Subpart 452.2_Texts of Provisions and Clauses



Sec. 452.204-70  Inquiries.

    As prescribed in 404.7001, insert the following provision:

                          Inquiries (FEB 1988)

    Inquiries and all correspondence concerning this solicitation should 
be submitted in writing to the Contracting Officer. Offerors should 
contact only the Contracting Officer issuing the solicitation about any 
aspect of this requirement prior to contract award.

                           (End of provision)



Sec. 452.211-70  Brand Name or Equal.

    As prescribed in 411.171, insert the following provision:

                     Brand Name or Equal (NOV 1996)

    (As used in this provision, the term ``brand name'' includes 
identification of products by make and model.)
    (a) If items called for by this solicitation have been identified by 
a ``brand name or equal'' description, such identification is intended 
to be descriptive, but not restrictive, and is to indicate the quality 
and characteristics of products that will be satisfactory. Offers of 
``equal'' products (including products of the brand name manufacturer 
other than the one described by brand name) will be considered for award 
if such products are clearly identified in the offer (see clause 
452.211-71) and are determined by the Contracting Officer to meet fully 
the salient characteristics requirements listed in the solicitation.
    (b) Unless the offeror clearly indicates in its offer that it is 
offering an ``equal'' product, the offeror shall be considered as 
offering the brand name product(s) referenced in the solicitation.
    (c)(1) If the offeror proposes to furnish an ``equal'' product or 
products, the brand

[[Page 152]]

name(s), if any, and any other required information about the product(s) 
to be furnished shall be inserted in the space provided in the 
solicitation. The evaluation of offers and the determination as to the 
equality of the product(s) offered shall be the responsibility of the 
Government and will be based on information furnished by the offeror or 
identified in its offer as well as other information reasonably 
available to the contracting activity. Caution to offerors: The 
contracting activity is not responsible for locating or securing any 
information which is not identified in the offer and is not reasonably 
available to the contracting activity. Accordingly, to assure that 
sufficient information is available, the offeror must furnish as a part 
of its offer all descriptive material (such as cuts, illustrations, 
drawings, or other information) necessary for the contracting activity 
to (i) determine whether the product offered meets the salient 
characteristics requirement of the solicitation, and (ii) establish 
exactly what the offeror proposes to furnish and what the Government 
would be binding itself to purchase by making an award. The information 
furnished may include specific reference to information previously 
furnished or to information otherwise available to the contracting 
activity.
    (2) If an offeror proposes to modify a product so as to make it 
conform to the requirements of the solicitation, the offer shall include 
(i) a clear description of such proposed modifications and (ii) clearly 
marked descriptive material to show the proposed modifications.

                           (End of provision)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998, 
as amended at 70 FR 50, Jan. 3, 2005]



Sec. 452.211-71  Equal Products Offered.

    As prescribed in 411.171, insert the following or substantially the 
same clause in solicitations seeking offers on a ``brand name or equal'' 
basis to allow offerors the opportunity to clearly identify the 
``equal'' item being offered, and to illustrate how that item meets the 
salient characteristics requirements of the Government.

                    Equal Products Offered (NOV 1996)

    (a) Offerors proposing to furnish an ``equal'' product, in 
accordance with the ``Brand Name or Equal'' provision of this 
solicitation, shall provide the following information for each offered 
``equal'' product:
Contract Line Item Number (if any):_____________________________________
Brand Name or Equal Product identified by the Government in this 
solicitation:___________________________________________________________
Offered Product Name:___________________________________________________
Catalog Description or part number:_____________________________________
________________________________________________________________________
Manufacturer's Name:____________________________________________________
Manufacturer's Address:_________________________________________________
________________________________________________________________________
________________________________________________________________________
    (b) Offerors are responsible for submitting all additional 
information on the above product necessary for the Contracting Officer 
to determine whether the product offered meets the ``brand name or 
equal'' product's salient characteristics listed in the solicitation.

                             (End of clause)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



Sec. 452.211-72  Statement of Work/Specifications.

    As prescribed in 411.171, insert the following clause:

               Statement of Work/Specifications (FEB 1988)

    The Contractor shall furnish the necessary personnel, material, 
equipment, services and facilities (except as otherwise specified), to 
perform the Statement of Work/Specifications referenced in Section J.

                             (End of clause)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



Sec. 452.211-73  Attachments to Statement of Work/Specifications.

    As prescribed in 411.171, insert the following clause:

       Attachments to Statement of Work/Specifications (FEB 1988)

    The attachments to the Statement of Work/Specifications listed in 
Section J are hereby made part of this solicitation and any resultant 
contract.

                             (End of clause)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



Sec. 452.211-74  Period of Performance.

    As prescribed in 411.404(a), insert the following clause:

                    Period of Performance (FEB 1988)

    The period of performance of this contract is from ------ through --
----.*

[[Page 153]]

                             (End of clause)

    * Contracting Officer shall insert the appropriate dates.

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



Sec. 452.211-75  Effective Period of the Contract.

    As prescribed in 411.404(b), insert the following clause:

               Effective Period of the Contract (FEB 1988)

    The effective period of this contract is from ------ through ----
--.*

                             (End of clause)

    * Contracting Officer shall insert the appropriate dates.

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998.]



Sec. 452.214-70  Award by Lot.

    As prescribed in 414.201-6, insert a provision substantially as 
follows:

                         Award by Lot (NOV 1996)

    Subject to the Section L provision FAR 52.214-10, ``Contract Award--
Sealed Bidding,'' award will generally be made to a single bidder on 
each entire lot. However, the Government reserves the right to award by 
item within any lot when the contracting officer determines that it is 
advantageous to the Government.

                           (End of provision)



Sec. 452.215-71  Instructions for the Preparation of Technical and 
          Business Proposals.

    As prescribed in 415.209(a), insert a provision substantially as 
follows:

  Instructions for the Preparation of Technical and Business Proposals 
                               (SEP 1999)

    (a) General Instructions. Proposals submitted in response to this 
solicitation shall be furnished in the following format with the numbers 
of copies as specified below.
    (1) The proposal must include a technical proposal and business 
proposal. Each of the parts shall be separate and complete so that 
evaluation of one may be accomplished independently from evaluation of 
the other. The technical proposal must not contain reference to cost; 
however, resource information (such as data concerning labor hours and 
categories, materials, subcontracts, etc.) must be contained in the 
technical proposal so that the contractor's understanding of the 
statement of work may be evaluated.
    (2) Offerors may, at their discretion, submit alternate proposals or 
proposals which deviate from the requirement; provided, that an offeror 
also submit a proposal for performance of the work as specified in the 
statement of work. Any ``alternate'' proposal may be considered if 
overall performance would be improved or not compromised, and if it is 
in the best interest of the Government. Alternate proposals, or 
deviations from any requirement of this RFP, must be clearly identified.
    (3) The Government will evaluate proposals in accordance with the 
evaluation criteria set forth in Section M of this RFP.
    (4) Offerors shall submit their proposal(s) in the following format 
and the quantities specified:
    (a) ------* copies of the completed, signed offer (Sections A 
through K of the solicitation package)
    (b) ------* copies of the technical proposal
    (c) ------* copies of the business/cost proposal
    (b) Technical Proposal Instructions. The technical proposal will be 
used to make an evaluation and arrive at a determination as to whether 
the proposal will meet the requirements of the Government. Therefore, 
the technical proposal must present sufficient information to reflect a 
thorough understanding of the requirements and a detailed, description 
of the techniques, procedures and program for achieving the objectives 
of the specifications/statement of work. Proposals which merely 
paraphrase the requirements of the Government's specifications/ 
statement of work, or use such phrases as ``will comply'' or ``standard 
techniques will be employed'' will be considered unacceptable and will 
not be considered further. As a minimum, the proposal must clearly 
provide the following:
    (Contracting Officer shall identify in this section the minimum 
information required to evaluate each technical evaluation factor listed 
in Section M.)
    (c) Business Proposal Instructions.
    (1) Cost Proposal.
    In addition to any other requirements for cost/pricing information 
required in clause FAR 52.215-20, Requirements for Cost or Pricing Data 
or Information Other Than Cost or Pricing Data (OCT 1997), the following 
is required:
    (Contracting Officer shall identify additional information required 
if appropriate.)
    (2) Business Proposal.
    (a) Furnish financial statements for the last two years, including 
an interim statement for the current year, unless previously provided to 
the office issuing the RFP, in which case a statement as to when and 
where this information was provided may be furnished instead.

[[Page 154]]

    (b) Specify the financial capacity, working capital and other 
resources available to perform the contract without assistance from any 
outside source.
    (c) Provide the name, location, and intercompany pricing policy for 
other divisions, subsidiaries, parent company, or affiliated companies 
that will perform work or furnish materials under this contract.

                           (End of provision)

    *Contracting officer shall insert number of copies required.

[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52675, Sept. 30, 1999; 
70 FR 50, Jan. 3, 2005]



Sec. 452.215-72  Amendments to Proposals.

    As prescribed in 415.209(b), insert the following provision:

                   Amendments to Proposals (FEB 1988)

    Any changes to a proposal made by the offeror after its initial 
submittal shall be accomplished by replacement pages. Changes from the 
original page shall be indicated on the outside margin by vertical lines 
adjacent to the change. The offeror shall include the date of the 
amendment on the lower right corner of the changed pages.

                           (End of provision)

[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52675, Sept. 30, 1999]



Sec. 452.215-73  Post Award Conference.

    As prescribed in 415.570, insert a clause substantially as follows:

                    Post Award Conference (NOV 1996)

    A post award conference with the successful offeror is required. It 
will be scheduled within ------* days after the date of contract award. 
The conference will be held at: ------*.

                             (End of clause)

    * Contracting officer to insert number of days and location.

[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52675, Sept. 30, 1999]



Sec. 452.216-70  Award Fee.

    As prescribed in 416.405, insert a clause substantially as follows:

                          Award Fee (FEB 1988)

    The amount of award fee the Contractor earns, if any, is based on a 
subjective evaluation by the Government of the quality of the 
Contractor's performance in accordance with the award fee plan. The 
Government will determine the amount of award fee every ------* months 
beginning with ------*. The Fee Determination Official (FDO) will 
unilaterally determine the amount of award fee. The FDO's determination 
will be in writing to the Contractor and is not subject to the 
``Disputes'' clause. The Government may unilaterally change the award 
fee plan at any time and will provide such changes in writing to the 
Contractor prior to the beginning of the applicable evaluation period. 
The Contractor may submit a voucher for the earned award fee. Available 
award fee not earned during one period does not carry over to subsequent 
periods.

                             (End of clause)

    * Contracting Officer shall insert appropriate number of months.
    ** Contracting Officer shall insert appropriate date.



Sec. 452.216-71  Base Fee and Award Fee Proposal.

    As prescribed in 416.470, insert the following provision:

                 Base Fee and Award Proposal (FEB 1988)

    For the purpose of this solicitation, offerors shall propose a base 
fee of ------* percent of the total estimated cost proposed. The award 
fee shall not exceed ------* percent of the total estimated cost.

                           (End of provision)

    * Contracting Officer shall insert appropriate percentages.



Sec. 452.216-72  Evaluation Quantities--Indefinite-Delivery Contract.

    As prescribed in 416.506(a), insert a provision substantially as 
follows:

     Evaluation Quantities--Indefinite-Delivery Contract (FEB 1988)

    To evaluate offers for award purposes, the Government will apply the 
offeror's proposed fixed-prices/rates to the estimated quantities 
included in the solicitation, and will add other direct costs if 
applicable.

                           (End of provision)



Sec. 452.216-73  Minimum and Maximum Contract Amounts.

    As prescribed in 416.506(b), insert the following clause:

[[Page 155]]

             Minimum and Maximum Contract Amounts (FEB 1988)

    During the period specified in FAR clause 52.216-18, ORDERING, the 
Government shall place orders totaling a minimum of ------*, but not in 
excess of ------*.

                             (End of clause)

    * Contracting Officer shall insert appropriate quantity or dollar 
amounts.



Sec. 452.216-74  Ceiling Price.

    As prescribed in 416.670, insert the following clause:

                        Ceiling Price (FEB 1988)

    The ceiling price of this contract is $------*. The Contractor shall 
not make expenditures or incur obligations in the performance of this 
contract which exceed the ceiling price specified herein, except at the 
Contractor's own risk.

                             (End of clause)

    *Contracting Officer shall insert appropriate dollar amount.



Sec. 452.216-75  Letter Contract.

    As prescribed in 416.603-4, insert the following clause:

                       Letter Contract (FEB 1988)

    This contract replaces letter contract No. ------* dated ------* and 
all amendments thereto.

                             (End of clause)

    * Contracting Officer shall insert number and date.



Sec. 452.219-70  Size Standard and NAICS Code Information.

    As prescribed in 419.508, insert the following provision:

           Size Standard and NAICS Code Information (SEP 2001)

    The North American Industrial Classification System Code(s) and 
business size standard(s) describing the products and/or services to be 
acquired under this solicitation are listed below:

Contract line item(s): ------* NAICS Code ------* Size Standard ------*

                           (End of provision)

    * Contracting Officer shall insert the appropriate data for each 
contract line item in the solicitation. The data entry line may be 
duplicated as required to describe all of the contract line items or 
sub-items.

[61 FR 53646, Oct. 15, 1996, as amended at 66 FR 49317, Sept. 27, 2001]



Sec. 452.224-70  Confidentiality of Information.

    As prescribed in 424.104, insert a clause substantially as follows:

                Confidentiality of Information (FEB 1988)

    (a) Confidential information, as used in this clause, means--
    (1) information or data of a personal nature, proprietary about an 
individual, or (2) information or data submitted by or pertaining to an 
organization.
    (b) In addition to the types of confidential information described 
in (a)(1) and (2) above, information which might require special 
consideration with regard to the timing of its disclosure may derive 
from studies or research, during which public disclosure of primarily 
invalidated findings could create an erroneous conclusion which might 
threaten public health or safety if acted upon.
    (c) The Contracting Officer and the Contractor may, by mutual 
consent, identify elsewhere in this contract specific information and/or 
categories of information which the Government will furnish to the 
Contractor or that the Contractor is expected to generate which is 
confidential. Similarly, the Contracting Officer and the Contractor may, 
by mutual consent, identify such confidential information from time to 
time during the performance of the contract. Failure to agree will be 
settled pursuant to the ``Disputes'' clause.
    (d) If it is established that information to be utilized under this 
contract is subject to the Privacy Act, the Contractor will follow the 
rules and procedures of disclosure set forth in the Privacy Act of 1974, 
5 U.S.C. 552a, and implementing regulations and policies, with respect 
to systems of records determined to be subject to the Privacy Act.
    (e) Confidential information, as defined in (a)(1) and (2) above, 
shall not be disclosed without the prior written consent of the 
individual, institution or organization.
    (f) Written advance notice of at least 45 days will be provided to 
the Contracting Officer of the Contractor's intent to release findings 
of studies or research, which have the possibility of adverse effects on 
the public or the Federal agency, as described in (b) above. If the 
Contracting Officer does not pose any objections in writing within the 
45 day period, the Contractor may proceed with disclosure. Disagreements 
not resolved by the Contractor and Contracting Officer will be settled 
pursuant to the ``Disputes'' clause.

[[Page 156]]

    (g) Whenever the Contractor is uncertain with regard to the proper 
handling of material under the contract, or if the material in question 
is subject to the Privacy Act or is confidential information subject to 
the provisions of this clause, the Contractor shall obtain a written 
determination from the Contracting Officer prior to any release, 
disclosure, dissemination, or publication.
    (h) The provisions of paragraph (e) of this clause shall not apply 
when the information is subject to conflicting or overlapping provisions 
in other Federal, State or local laws.

                             (End of clause)



Sec. 452.226-70--452.226-72  [Reserved]



Sec. 452.228-70  Alternative Forms of Security.

    As prescribed in 428.204-2, insert the following provision:

                Alternative Forms of Security (NOV 1996)

    If furnished as security, money orders, drafts, cashiers checks, or 
certified checks shall be drawn payable to: ------*.

                           (End of provision)

    * Contracting Officer shall insert the name of the USDA contracting 
activity.



Sec. 452.228-71  Insurance Coverage.

    As prescribed in 428.310, insert the following clause:

                      Insurance Coverage (NOV 1996)

    Pursuant to FAR clause 52.228-5, Insurance-Work on a Government 
Installation, the Contractor will be required to present evidence to 
show, as a minimum, the amounts of insurance coverage indicated below:
    (a) Workers Compensation and Employer's Liability. The Contractor is 
required to comply with applicable Federal and State workers' 
compensation and occupational disease statutes. If occupational diseases 
are not compensable under those statutes, they shall be covered under 
the employer's liability section of the insurance policy, except when 
contract operations are so commingled with a Contractor's commercial 
operations that it would not be practical to require this coverage. 
Employer's liability coverage of at least $100,000 shall be required, 
except in States with exclusive or monopolistic funds that do not permit 
worker's compensation to be written by private carriers.
    (b) General Liability. The Contractor shall have bodily injury 
liability insurance coverage written on a comprehensive form of policy 
of at least $500,000 per occurrence.
    (c) Automobile Liability. The Contractor shall have automobile 
liability insurance written on a comprehensive form of policy. The 
policy shall provide for bodily injury and property damage liability 
covering the operation of all automobiles used in connection with 
performing the contract. Policies covering automobiles operated in the 
United States shall provide coverage of at least $200,000 per person and 
$500,000 per occurrence for bodily injury and $20,000 per occurrence for 
property damage or loss.
    (d) Aircraft Public and Passenger Liability. When aircraft are used 
in connection with performing the contract, the Contractor shall have 
aircraft public and passenger liability insurance. Coverage shall be at 
least $200,000 per person and $500,000 per occurrence for bodily injury, 
other than passenger injury. Coverage for passenger injury shall be at 
least $200,000 multiplied by the number of seats or passengers, 
whichever is greater.

                             (End of clause)

    Alternate I (NOV 1996). As prescribed in 428.310, substitute the 
following paragraph (b), when additionally the contractor must have 
property damage liability coverage:

    (b) General Liability. (1) The Contractor shall have bodily injury 
liability coverage written on a comprehensive form of policy of at least 
$500,000 per occurrence.
    (2) The Contractor shall have property damage liability insurance 
shall be required in the amount of ------* per occurrence.
    * Contracting Officer shall insert amount required.



Sec. 452.232-70  Reimbursement for Bond Premiums--Fixed-Price 
          Construction Contracts.

    As prescribed in 432.111, insert the following clause:

Reimbursement for Bond Premiums--Fixed-Price Construction Contracts (NOV 
                                  1996)

    The Contract Price includes the total amount for premiums that the 
Contractor attributes to the furnishing of performance and payment bonds 
required by the contract. Reimbursement for bond premiums under the 
clause at FAR 52.232-5, Payments Under Fixed-Price Construction, shall 
not cover any amount therefor not included in the contract price.

                             (End of clause)

[61 FR 53646, Oct. 15, 1996. Redesignated at 63 FR 26996, May 15, 1998, 
as amended at 70 FR 50, Jan. 3, 2005]

[[Page 157]]



Sec. 452.236-70  Additive or Deductive Items.

    As prescribed in 436.205, insert the following provision:

                 Additive or Deductive Items (FEB 1988)

    The low bidder for purposes of award shall be the conforming 
responsible bidder offering the low aggregate amount for the first or 
base bid item, plus or minus (in the order of priority listed in the 
schedule) those additive or deductive bid items providing the most 
features of the work within the funds determined by the government to be 
available before bids are opened. If addition of another bid item in the 
listed order of priority would make the award exceed such funds for all 
bidders, it shall be skipped and the next subsequent additive bid item 
in a lower amount shall be added if award therein can be made within 
such funds. For example, when the amount available is $100,000 and a 
bidder's base bid and four successive additives are $85,000, $10,000, 
$8,000, $6,000, and $4,000, the aggregate amount of the bid for purposes 
of award would be $99,000 for the base bid plus the first and fourth 
additives, the second and third additives being skipped because of each 
of them would cause the aggregate bid to exceed $100,000. In any case 
all bids shall be evaluated on the basis of the same additive or 
deductive bid items, determined as above provided. The listed order of 
priority need be followed only for determining the low bidder. After 
determination of the low bidder as stated, award in the best interests 
of the Government may be made on the selected first or base bid item and 
any combination of additive or deductive items for which funds are 
determined to be available at the time of the award, provided that award 
on such combination of bid items does not exceed the amount offered by 
any other conforming responsible bidder for the same combination of bid 
items.

                             (End of clause)



Sec. 452.236-71  Prohibition Against the Use of Lead-Based Paint.

    As prescribed in 436.571, insert the following clause:

       Prohibition Against the Use of Lead-Based Paint (NOV 1996)

    Neither the Contractor nor any subcontractor performing under this 
contract shall use paints containing more then 0.06 of 1 percent lead by 
weight (calculated as lead metal) in the total nonvolatile content of 
the paint, or the equivalent measure of lead in the dried film of paint 
already applied, or both.

                             (End of clause)



Sec. 452.236-72  Use of Premises.

    As prescribed in 436.572, insert the following clause:

                       Use of Premises (NOV 1996)

    (a) Before any camp, quarry, borrow pit, storage, detour, or bypass 
site, other than shown on the drawings, is opened or operated on USDA 
land or lands administered by the USDA, the Contractor shall obtain 
written permission from the Contracting Officer. A camp is interpreted 
to include a campsite or trailer parking area of any employee working on 
the project for the Contractor.
    (b) Unless excepted elsewhere in the contract, the Contractor shall 
(i) provide and maintain sanitation facilities for the work force at the 
site and (ii) dispose of solid waste in accordance with applicable 
Federal, State and local regulations.

                             (End of clause)



Sec. 452.236-73  Archaeological or Historic Sites.

    As prescribed in 436.573, insert the following clause:

               Archaeological or Historic Sites (FEB 1988)

    If a previously unidentified archaeological or historic site(s) is 
encountered, the Contractor shall discontinue work in the general area 
of the site(s) and notify the Contracting Officer immediately.

                             (End of clause)



Sec. 452.236-74  Control of Erosion, Sedimentation, and Pollution.

    As prescribed in 436.574, insert the following clause:

       Control of Erosion, Sedimentation, and Pollution (NOV 1996)

    (a) Operations shall be scheduled and conducted to minimize erosion 
of soils and to prevent silting and muddying of streams, rivers, 
irrigation systems, and impoundments (lakes, reservoirs, etc.).
    (b) Pollutants such as fuels, lubricants, bitumens, raw sewage, and 
other harmful materials shall not be discharged on the ground; into or 
nearby rivers, streams, or impoundments; or into natural or man-made 
channels. Wash water or waste from concrete or aggregate operations 
shall not be allowed to enter live streams prior to treatment by 
filtration, settling, or other means sufficient to reduce the sediment 
content to not more than that of the stream into which it is discharged.

[[Page 158]]

    (c) Mechanized equipment shall not be operated in flowing streams 
without written approval by the Contracting Officer.

                             (End of clause)



Sec. 452.236-75  Maximum Workweek--Construction Schedule.

    As prescribed in 436.575, insert the following clause:

           Maximum Workweek--Construction Schedule (NOV 1996)

    Within ---- calendar days after receipt of a written request from 
the Contracting Officer, the Contractor must submit the following in 
writing for approval:
    (a) A schedule as required by FAR clause 52.236-15, Schedules for 
Construction Contracts, and
    (b) The hours (including the daily starting and stopping times) and 
days of the week the Contractor proposes to carry out the work.
    The maximum workweek that will be approved is ----*.

                             (End of clause)

    * Contracting Officer shall insert appropriate number of days and 
hours and/or days.



Sec. 452.236-76  Samples and Certificates.

    As prescribed in 436.576, insert the following clause:

                   Samples and Certificates (FEB 1988)

    When required by the specifications or the Contracting Officer, 
samples, certificates, and test data shall be submitted after award of 
the contract, prepaid, in time for proper action by the Contracting 
Officer or his/her designated representative. Certificates and test data 
shall be submitted in triplicate to show compliance with materials and 
construction specified in the contract performance requirements.
    Samples shall be submitted in duplicate by the Contractor, except as 
otherwise specified, to show compliance with the contract requirements. 
Materials or equipment for which samples, certifications or test data 
are required shall not be used in the work until approved in writing by 
the Contracting Officer.

                             (End of clause)



Sec. 452.236-77  Emergency Response.

    As prescribed in 436.577, the following clause may be used in Forest 
Service construction contracts:

                      Emergency Response (NOV 1996)

    (a) Contractor's Responsibility for Fire Fighting. (1) The 
Contractor, under the provisions of FAR clause 52.236-9, Protection of 
Existing Vegetation, Structures, Equipment, Utilities, and Improvements, 
shall immediately extinguish all fires on the work site other than those 
fires in use as a part of the work.
    (2) The Contractor may be held liable for all damages and for all 
costs incurred by the Government for labor, subsistence, equipment, 
supplies, and transportation deemed necessary to control or suppress a 
fire set or caused by the Contractor or the Contractor's agents or 
employees.
    (b) Contractor's Responsibility for Notification in Case of Fire. 
The Contractor shall immediately notify the Government of any fires 
sighted on or in the vicinity of the work site.
    (c) Contractor's Responsibility for Responding to Emergencies. When 
directed by the Contracting Officer, the Contractor shall allow the 
Government to temporarily use employees and equipment from the work site 
for emergency work (anticipated to be restricted to fire fighting). An 
equitable adjustment for the temporary use of employees and equipment 
will be made under the Changes clause, FAR 52.243-4.

                             (End of clause)



Sec. 452.236-78  [Reserved]



Sec. 452.236-79  Opted Timber Sale Road Requirements.

    As prescribed in 436.579, insert the following clause:

             Opted Timber Sale Road Requirements (NOV 1996)

    This contract is for the construction of timber sale road(s) which a 
timber purchaser has opted to have the Government construct. The 
Government is obligated to make these roads available to the timber 
purchaser by ------*. Failure to make these roads available by this date 
could result in Government liability for delay to the timber purchaser 
for which the Contractor might become liable should the Contractor fail 
to complete this contract within the specified and allowed contract 
time.

                             (End of clause)

    * Contracting Officer shall insert appropriate date.



Sec. 452.236-80  Firms Ineligible for Award--Construction.

    As prescribed in 436.670, insert the following clause:

[[Page 159]]

           Firms Ineligible for Award--Construction (NOV 1996)

    The firm(s) and its subsidiaries or affiliates signatory to this 
contract shall be ineligible for award of any construction contract 
resulting from the design work performed under this contract.

                             (End of clause)



Sec. 452.237-70  Loss, Damage, Destruction or Repair.

    (a) As prescribed in 437.110(a), insert a clause substantially as 
follows:

             Loss, Damage, Destruction or Repair (FEB 1988)

    (a) For equipment furnished under this contract without operator, 
the Government will assume liability for any loss, damage or destruction 
of such equipment, not to exceed a total of $------* except that no 
reimbursement will be made for loss, damage or destruction due to (1) 
ordinary wear or tear, (2) mechanical failure, or (3) the fault or 
negligence of the Contractor or the Contractor's agents or employees.
    (b) For equipment furnished under this contract with operator, the 
Government shall not be liable for any loss, damage or destruction of 
such equipment, except for loss, damage or destruction resulting from 
the negligent or wrongful act(s) of Government employee(s) while acting 
within the scope of their employment.
    (c) All repairs to equipment furnished under this contract shall be 
made by the Contractor and reimbursement, if any, shall be determined in 
accordance with (a) or (b) above. Repairs shall be made promptly and 
equipment returned to use within ------** hours. In lieu of repairing 
equipment, the Contractor may furnish similar replacement equipment 
within the time specified. The Contractor may authorize the Government 
to make repairs upon the request of the Contracting Officer. In such 
case, the Contractor will be billed for labor and parts costs.

                             (End of clause)

    * Contracting Officer shall insert amount available in current funds 
to cover potential liability.
    ** Contracting Officer shall insert appropriate number of hours.



Sec. 452.237-71  Pre-Bid/Pre-Proposal Conference.

    As prescribed in 437.110(b), insert a provision substantially as 
follows:

               Pre-Bid/Pre-Proposal Conference (FEB 1988)

    (a) The Government is planning a pre-bid/pre-proposal conference, 
during which potential offerors may obtain a better understanding of the 
work required.
    (b) Offerors are encouraged to submit all questions in writing at 
least five (5) days prior to the conference. Questions will be 
considered at any time prior to or during the conference; however, 
offerors will be asked to confirm verbal questions in writing. 
Subsequent to the conference, an amendment to the solicitation 
containing an abstract of the questions and answers, and a list of 
attendees, will be disseminated.
    (c) In order to facilitate conference preparations, it is requested 
that the person named on the Standard Form 33 of this solicitation be 
contacted and advised of the number of persons who will attend.
    (d) The Government assumes no responsibility for any expense 
incurred by an offeror prior to contract award.
    (e) Offerors are cautioned that, notwithstanding any remarks or 
clarifications given at the conference, all terms and conditions of the 
solicitation remain unchanged unless they are changed by amendment to 
the solicitation. If the answers to conference questions, or any 
solicitation amendment, create ambiguities, it is the responsibility of 
the offeror to seek clarification prior to submitting an offer.
    (f) The conference will be held:

Date:___________________________________________________________________
Time:___________________________________________________________________
Location:_______________________________________________________________

                             (End of clause)



Sec. 452.237-73  Equipment Inspection Visit.

    As prescribed in 437.110(c), insert the following provision:

                  Equipment Inspection Visit (FEB 1988)

    Offerors are urged and expected to inspect the equipment on which 
maintenance or repairs are to be performed and to satisfy themselves 
regarding all conditions that may affect the cost of contract 
performance, to the extent that the information is reasonably 
obtainable. In no event shall failure to inspect the equipment 
constitute grounds for a claim after contract award.
    Offerors are invited to inspect the ------* at ------* by 
telephoning ------* on ------* for an appointment.

                             (End of clause)

    * Contracting Officer shall insert appropriate data.

[[Page 160]]



Sec. 452.237-74  Key Personnel.

    As prescribed in 437.110(d), insert a clause substantially as 
follows:

                        Key Personnel (FEB 1988)

    (a) The Contractor shall assign to this contract the following key 
personnel: ----------
    (b) During the first ninety (90) days of performance, the Contractor 
shall make no substitutions of key personnel unless the substitution is 
necessitated by illness, death, or termination of employment. The 
Contractor shall notify the Contracting Officer within 15 calendar days 
after the occurrence of any of these events and provide the information 
required by paragraph (c) below. After the initial 90-day period, the 
Contractor shall submit the information required by paragraph (c) to the 
Contracting Officer at least 15 days prior to making any permanent 
substitutions.
    (c) The Contractor shall provide a detailed explanation of the 
circumstances necessitating the proposed substitutions, complete resumes 
for the proposed substitutes, and any additional information requested 
by the Contracting Officer. Proposed substitutes should have comparable 
qualifications to those of the persons being replaced. The Contracting 
Officer will notify the Contractor within 15 calendar days after receipt 
of all required information of the decision on substitutions. The 
contract will be modified to reflect any approved changes of key 
personnel.

                             (End of clause)



Sec. 452.237-75  Restrictions Against Disclosure.

    As prescribed in 437.110(e), insert a clause substantially as 
follows:

               Restrictions Against Disclosure (FEB 1988)

    (a) The Contractor agrees, in the performance of this contract, to 
keep all information contained in source documents or other media 
furnished by the Government in the strictest confidence. The Contractor 
also agrees not to publish or otherwise divulge such information in 
whole or in part in any manner or form, or to authorize or permit others 
to do so, taking such reasonable measures as are necessary to restrict 
access to such information while in the Contractor's possession, to 
those employees needing such information to perform the work provided 
herein, i.e., on a ``need to know'' basis. The Contractor agrees to 
immediately notify in writing, the Contracting Officer, named herein, in 
the event that the Contractor determines or has reason to suspect a 
breach of this requirement.
    (b) The Contractor agrees not to disclose any information concerning 
the work under this contract to any persons or individual unless prior 
written approval is obtained from the Contracting Officer. The 
Contractor agrees to insert the substance of this clause in any 
consultant agreement or subcontract hereunder.

                             (End of clause)



Sec. 452.237-76  Progress Reporting.

    As prescribed in 437.270(a), insert a clause substantially as 
follows:

                      Progress Reporting (FEB 1988)

    The Contractor shall submit a progress report ------*, covering work 
accomplished during that period of the contract performance. The 
progress report shall be brief and factual and shall be prepared in 
accordance with the following format:
    (a) A cover page containing:
    (1) Contract number and title;
    (2) Type of report, sequence number of report, and period of 
performance being reported;
    (3) Contractor's name and address;
    (4) Author(s); and
    (5) Date of report.
    (b) Section I--An introduction covering the purpose and scope of the 
contract effort. This shall be limited to one paragraph in all but the 
first and final month's narrative.
    (c) Section II--A description of overall progress plus a separate 
description of each task or other logical segment of work on which 
effort was expended during the report period. The description shall 
include pertinent data and/or graphs in sufficient detail to explain any 
significant results achieved.
    (d) Section III--A description of current technical or substantive 
performance, and any problem(s) which may impede performance along with 
proposed corrective action.
    (e) Section IV--A planning schedule shall be included with the first 
progress report for all assigned tasks required under the contract, 
along with the estimated starting and completion dates for each task. 
The planning schedule shall be updated and submitted with each 
subsequent technical progress report, including an explanation of any 
difference between actual progress and planned progress, why the 
differences have occurred, and--if behind planned progress--what 
corrective steps are planned.
    (f) Section V--If applicable, financial information shall be 
submitted for each major task or line item cost.
    Data shall include:
    (1) The total estimated cost budgeted (fee excluded).
    (2) The estimated cost expended during the current reporting period.

[[Page 161]]

    (3) Identification of direct labor hours of prime contractor and 
subcontractor(s) and/or consultant(s), if applicable.
    (4) Total project to-date expenditures.
    (5) Total remaining funds.

                             (End of clause)

    * Contracting Officer shall insert frequency of reporting 
requirement.



Sec. 452.237-78  Contracts with Consulting Firms for Services.

    As prescribed in 437.270(b), insert a clause substantially as 
follows:

         Contracts with Consulting Firms for Services (FEB 1988)

    Offerors are specifically cautioned that any firm(s) receiving a 
contract award to provide the services described herein will be 
prohibited from competing for or receiving a follow-on contract to 
perform ------.*

                             (End of clause)

    * Contracting Officer shall insert the appropriate information.



Sec. 452.246-70  Inspection and Acceptance.

    As prescribed in 446.370, insert the following clause:

                  Inspection and Acceptance (FEB 1988)

    (a) The Contracting Officer or the Contracting Officer's duly 
authorized representative will inspect and accept the supplies and/or 
services to be provided under this contract.
    (b) Inspection and acceptance will be performed at: ------.*

                             (End of clause)

    * Contracting Officer shall insert appropriate identifying data.
    Alternate I (FEB 1988). As prescribed in 446.370, substitute a 
paragraph (b) and add a paragraph (c):

    (b) Inspection will be performed at: ------.*
    (c) Acceptance will be performed at: ------.*

                             (End of clause)



Sec. 452.247-70  Delivery Location.

    As prescribed in 447.302, insert a clause substantially as follows:

                      Delivery Location (FEB 1988)

    Shipment of deliverable items, other than reports, shall be to: ----
--.*

                             (End of clause)

    * Contracting Officer shall insert appropriate identifying data.



Sec. 452.247-71  Marking Deliverables.

    As prescribed in 447.305-10(a), insert a clause substantially as 
follows:

                     Marking Deliverables (FEB 1988)

    (a) The contract number shall be placed on or adjacent to all 
exterior mailing or shipping labels of deliverable items called for by 
the contract.
    (b) Mark deliverables, except reports, for: ------.*

                             (End of clause)

    * Contracting Officer shall insert the appropriate information.



Sec. 452.247-72  Packing for Domestic Shipment.

    As prescribed in 447.305-10(b), insert the following clause:

                Packing for Domestic Shipment (FEB 1988)

    Material shall be packed for shipment in such a manner that will 
insure acceptance by common carriers and safe delivery at destination. 
Containers and closures shall comply with the Interstate Commerce 
Commission regulations, Uniform Freight Classification Rules, or 
regulations of other carriers as applicable to the mode of 
transportation.

                             (End of clause)



Sec. 452.247-73  Packing for Overseas Shipment.

    As prescribed in 447.305-10(c), insert the following clause:

                Packing for Overseas Shipment (FEB 1988)

    Supplies shall be packed for overseas shipment in accordance with 
the best commercial export practice suitable for water movement to 
arrive undamaged at ultimate destination.

                             (End of clause)

                             PART 453_FORMS

Sec.

Sec. 453.000 Scope of part.

                          Subpart 453.1_General


Sec. 453.103 Exceptions.

Sec. 453.108 Recommendations concerning forms.

[[Page 162]]

                   Subpart 453.2_Prescription of Forms


Sec. 453.200 Scope of subpart.

Sec. 453.213 Simplified Acquisition and other simplified purchase 
          procedures (AD-838).

Sec. 453.270 Request for contract action (AD-700).

                  Subpart 453.3_Illustrations of Forms


Sec. 453.300 Scope of subpart.

Sec. 453.303 Agency forms.

Sec. 453.303-700 Procurement Request (AD-700).

Sec. 453.303-838 Purchase Order (AD-838).

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.



Sec. 453.000  Scope of part.

    This part:
    (a) Prescribes USDA (AD) forms for use in acquisition,
    (b) Contains requirements and information generally applicable to AD 
forms and forms prescribed by FAR part 53, and
    (c) Illustrates AD forms.

                          Subpart 453.1_General



Sec. 453.103  Exceptions.

    (a) The contracting officer shall submit a request for exceptions to 
forms prescribed in FAR part 53 through the head of the contracting 
activity (HCA) to the Senior Procurement Executive (SPE) for referral to 
the GSA.
    (b) Requests for exceptions to AD forms prescribed in part 453 shall 
be handled as individual or class deviations, as appropriate (see 
subpart 401.4).



Sec. 453.108  Recommendations concerning forms.

    Contracting officers shall submit recommendations for new forms or 
to revise, eliminate, or consolidate forms prescribed by FAR part 53 and 
part 453 through the HCA to the SPE.

                   Subpart 453.2_Prescription of Forms



Sec. 453.200  Scope of subpart.

    This subpart prescribes USDA (AD) forms for use in acquisition. 
Consistent with the approach used in FAR subpart 53.2, this subpart is 
arranged by subject matter, in the same order as, and keyed to, the 
parts of the AGAR in which the form usage requirements are addressed.



Sec. 453.213  Simplified Acquisition and other simplified purchase 

procedures (AD-838).

    Form AD-838, Purchase Order, is prescribed for use as a Simplified 
Acquisition Procedure/delivery order/task order document in lieu of OF 
347 and OF 348, except that use of the OF 347 and OF 348 is authorized 
when utilizing the USDA Integrated Acquisition System (See 413.307).

[70 FR 50, Jan. 3, 2005]



Sec. 453.270  Request for contract action (AD-700).

    Form AD-700, Procurement Request, may be used as a contract 
requisition document by contracting activities in USDA.

                  Subpart 453.3_Illustrations of Forms



Sec. 453.300  Scope of subpart.

    This subpart contains illustrations of USDA (AD) forms for use in 
acquisitions. Forms are not illustrated in the Federal Register or Code 
of Federal Regulations. Individual copies may be obtained from any USDA 
contracting activity or the office of the SPE.



Sec. 453.303  Agency forms.



Sec. 453.303-700  Procurement Request (AD-700).



Sec. 453.303-838  Purchase Order (AD-838).

[[Page 163]]



               CHAPTER 5--GENERAL SERVICES ADMINISTRATION




                           (Parts 500 to 599)

  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
501             General Services Administration Acquisition 
                    Regulation System.......................         165
502             Definitions of words and terms..............         167
503             Improper business practices and personal 
                    conflicts of interest...................         168
504             Administrative matters......................         170
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
505             Publicizing contract actions................         173
509             Contractor qualifications...................         174
511             Describing agency needs.....................         178
512             Acquisition of commercial items.............         182
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
513             Simplified acquisition procedures...........         183
514             Sealed bidding..............................         183
515             Contracting by negotiation..................         189
516             Types of contracts..........................         195
517             Special contracting methods.................         196
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
519             Small business programs.....................         199
522             Application of labor laws to Government 
                    acquisitions............................         200
523             Environment, conservation, occupational 
                    safety and drug-free workplace..........         201
525             Foreign acquisition.........................         201
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
527             Patents, data, and copyrights...............         203

[[Page 164]]

528             Bonds and insurance.........................         203
529             Taxes.......................................         203
532             Contract financing..........................         204
533             Protests, disputes, and appeals.............         208
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
536             Construction and architect-engineer 
                    contracts...............................         209
537             Service contracting.........................         213
538             Federal supply schedule contracting.........         214
                    SUBCHAPTER G--CONTRACT MANAGEMENT
542             Contract administration and audit services..         220
543             Contract modifications......................         220
546             Quality assurance...........................         221
547             Transportation..............................         222
549             Termination of contracts....................         223
                     SUBCHAPTER H--CLAUSES AND FORMS
552             Solicitation provisions and contract clauses         224
553             Forms.......................................         294
               SUBCHAPTER I--SPECIAL CONTRACTING PROGRAMS
570             Acquiring leasehold interests in real 
                    property................................         295

[[Page 165]]

                          SUBCHAPTER A_GENERAL

 PART 501_GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION SYSTEM

               Subpart 501.1_Purpose, Authority, Issuance

Sec.

Sec. 501.101 Purpose.

Sec. 501.103 Authority.

Sec. 501.104 Applicability.

Sec. 501.105 Issuance.

Sec. 501.105-1 Publication and code arrangement.

Sec. 501.105-2 Arrangement of regulations.

Sec. 501.105-3 Copies.

Sec. 501.106 OMB approval under the Paperwork Reduction Act.

             Subpart 501.4_Deviations From the FAR and GSAR


Sec. 501.402 Policy.

Sec. 501.403 Individual deviations.

Sec. 501.404 Class deviations.

Sec. 501.404-70 Contract action.

Sec. 501.404-71 Deviations to the nonregulatory GSAM.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37203, July 9, 1999, unless otherwise noted.

               Subpart 501.1_Purpose, Authority, Issuance



Sec. 501.101  Purpose.

    (a) The General Services Acquisition Regulation (GSAR) contains 
agency acquisition policies and practices, contract clauses, 
solicitation provisions, and forms that control the relationship between 
GSA and contractors and prospective contractors.
    (b) GSAR address rules directly to you, the contracting officer, 
unless otherwise indicated.



Sec. 501.103  Authority.

    GSA's Senior Procurement Executive issues the GSAR under the 
authority of the Federal Property and Administrative Services Act of 
1949, as amended.



Sec. 501.104  Applicability.

    (a) General. The GSAR applies to contracts for suppliers or 
services, including construction.
    (b) Acquisition of leasehold interests in real property. Part 570 
establishes rules for the acquisition of leasehold interests in real 
property. Other provisions of 48 CFR chapter 5 (GSAR) do not apply to 
leases of real property unless specifically cross-reference in part 570.
    (c) Relationship to state. Some GSAR rules implement and interpret 
laws and other authorities affecting procurement. A GSAR rule 
specifically directed by statute has the force and effect of law.
    (d) GSAR/FAR Relationship. The GSAR may deviate from the Federal 
Acquisition Regulation (FAR) if authorized. If the GSAR does not 
implement the FAR, the FAR alone governs.



Sec. 501.105  Issuance.



Sec. 501.105-1  Publication and code arrangement.

    The GSAR is published in the following sources:
    (a) Daily issue of the Federal Register.
    (b) Annual Code of Federal Regulations (CFR), as Chapter 5 of Title 
48.
    (c) GSA Acquisition Manual distributed within GSA.
    (d) GSA Home Page at http://www/gas.gov. Click on either 
``Government Agencies'' or on ``Business and Industry,'' the click on 
``Acquisition.''



Sec. 501.105-2  Arrangement of regulations.

    (a) The GSAR numbers and captions policies and procedures to 
correspond to how they appear in the FAR, e.g., 1.104 in the FAR is 
501.104 in the GSAR.
    (b) GSAR rules not implementing the FAR have numbers beginning with 
70, e.g., part 570, subsection 515.209-70.
    (c) The GSAR may have gaps in its numbering scheme because a FAR 
rule may not require GSAR implementation.



Sec. 501.105-3  Copies.

    The GSAR in CFR form may be purchased from: Superintendent of 
Documents, Government Printing Office, Washington, DC 20402.

[[Page 166]]



Sec. 501.106  OMB approval under the Paperwork Reduction Act.

------------------------------------------------------------------------
               GSAR Reference                      OMB Control No.
------------------------------------------------------------------------
509.105-1(a)...............................  3090-0007
511.140-70.................................  3090-0203
511.204(d).................................  3090-0246
511.404(a)(1)..............................  3090-0204
511.404(a)(2)..............................  3090-0204
511.404(a)(5)..............................  3090-0204
514.201-7(a)...............................  3090-0200
516.203-4(a)(1)............................  3090-0243
516.506....................................  3090-0248
519.708(b).................................  3090-0252
522.406-6..................................  1215-0149
523.370....................................  3090-0205
532.111(c).................................  3090-0080
532.905-70.................................  9000-0102
532.905-71.................................  3090-0080
537.110(a).................................  3090-0197
537.110(b).................................  3090-0006
538.273(a)(1)..............................  3090-0250
538.273(a)(3)..............................  3090-0262
538.273(b)(1)..............................  3090-0121
542.1107...................................  3090-0027
546.307-70.................................  3090-0027
546.302-71.................................  3090-0027
549.502(b).................................  3090-0027
552.211-8..................................  3090-0204
552.211-77.................................  3090-0246
552.211-78.................................  3090-0204
552.211-82.................................  3090-0204
552.214-71.................................  3090-0200
552.216-70.................................  3090-0243
552.216-72.................................  3090-0248
552.216-73.................................  3090-0248
552.219-72.................................  3090-0252
552.223-72.................................  3090-0205
552.232-72.................................  3090-0080
552.237-70.................................  3090-0197
552.237-71.................................  3090-0006
552.238-70.................................  3090-0250
552.238-72.................................  3090-0262
552.238-74.................................  3090-0121, 3090-0250
552.242-70.................................  3090-0027
552.246-70.................................  3090-0027
552.246-71.................................  3090-0027
552.249-71.................................  3090-0227
GSA-72-A...................................  3090-0121
GSA-527....................................  3090-0007
GSA-618-D..................................  1215-0149
GSA-1142...................................  3090-0080
GSA-1364...................................  3090-0086
GSA-1678...................................  3090-0027
GSA-2419...................................  9000-0102
570.702(c).................................  3090-0086
------------------------------------------------------------------------


[64 FR 37203, July 9, 1999, as amended at 65 FR 41378, July 5, 2000; 68 
FR 41288, July 11, 2003]

             Subpart 501.4_Deviations From the FAR and GSAR



Sec. 501.402  Policy.

    Uniformity is a goal of GSA's Acquisition Regulation System. Despite 
this desire for uniformity, a contracting activity may take any of the 
following actions:
    (a) Develop and test new procedures and techniques.
    (b) Adopt alternate procedures in the public interest for unique 
programmatic or managerial requirements
    (c) Deviate from a regulatory provision implementing a statutory 
requirement provided the deviation does not violate the underlying 
statute. Deviations must not be used to defeat the FAR and GSAR approval 
requirements.



Sec. 501.403  Individual deviations.

    (a) An individual deviation affects only one contract action.
    (1) The Head of the Contracting Activity (HCA) must approve an 
individual deviation to the FAR. The authority to grant an individual 
deviation may not be re-delegated. A copy of the deviation must be 
provided to GSA's Senior Procurement Executive (SPE).
    (2) An individual deviation to the GSAR must be approved by the HCA. 
The authority to grant an individual deviation may be re-delegated to 
the Contracting Director.
    (b) If GSA delegates authority to another agency and requires 
compliance with the GSAR as a condition of the delegation, the 
Contracting Director in the agency receiving the delegation may approve 
individual deviations from the GSAR unless the agency head receiving the 
delegation designates another official.
    (c) Send a copy of each deviation to GSA's SPE (V).

[64 FR 37203, July 9, 1999, as amended at 70 FR 15779, Mar. 29, 2005]



Sec. 501.404  Class deviations.

    (a) A class deviation affects more than one contract action. A 
deviation for any solicitation that will result in multiple awards or 
any solicitation under the multiple award Federal Supply Schedule 
program is considered to be a class deviation. Each award under such a 
solicitation is considered an individual contract action.
    (1) A class deviation to the FAR must be forwarded by the cognizant 
HCA to GSA's SPE for approval. Prior to approving a class deviation to 
the FAR,

[[Page 167]]

the SPE will consult with the Chairman of the Civilian Agency 
Acquisition Council (CAAC) in accordance with FAR 1.404(a)(1).
    (2) A class deviation to the GSAR must be forwarded by the cognizant 
HCA to GSA's SPE for approval.
    (3) When an HCA knows that a proposed class deviation will be 
required on a permanent basis, the HCA should propose or recommend an 
appropriate FAR and/or GSAR revision.
    (b) If GSA delegates authority to another agency and requires 
compliance with the GSAR as a condition of the delegation, the HCA in 
the agency receiving the delegation may approve class deviations from 
the GSAR unless the agency head receiving the delegation designates 
another official.
    (c) Send a copy of each deviation to GSA's SPE (V).
    (d) A request for class deviations must be supported by statements 
that fully describe the need for and the nature of the deviation.
    (e) Class deviations from the GSAR:
    (1) Expire in 12 months if not extended.
    (2) May be rescinded earlier by GSA's SPE or by officials designated 
under paragraph (a) of this section without prejudice to any action 
taken previously.

[64 FR 37203, July 9, 1999, as amended at 70 FR 15780, Mar. 29, 2005]



Sec. 501.404-70  Contract action.

    Contract action. A contract action, for the purpose of determining 
whether an individual or class deviation is appropriate, has the same 
meaning as that used for reporting contract actions to Federal 
Procurement Data System--Next Generation (FPDS-NG). A contract action 
includes, but is not limited to, any of the following:
    (a) Initial letter contract.
    (b) Definitive contract superseding letter contract.
    (c) New definitive contract.
    (d) Purchase order/BPA calls using simplified acquisition 
procedures.
    (e) Orders under single award indefinite delivery contracts.
    (f) Orders under BOA.
    (g) Order/modification under Federal schedule contract.
    (h) Modification.
    (i) Termination for Default.
    (j) Termination for Convenience.
    (k) Order under multiple award contract.
    (l) Initial load of Federal schedule contract.

[70 FR 15780, Mar. 29, 2005]



Sec. 501.404-71  Deviations to the nonregulatory GSAM.

    Handle individual and class deviations to the nonregulatory 
(unshaded) part of the GSAM as stated in 501.403 and 501.404.

[70 FR 15780, Mar. 29, 2005]

                 PART 502_DEFINITIONS OF WORDS AND TERMS

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37204, July 9, 1999, unless otherwise noted.

                        Subpart 502.1_Definitions



Sec. 502.101  Definitions.

    Agency competition advocate means the GSA Competition Advocate in 
the Office of Acquisition Policy.
    Assigned counsel means the attorney employed by the Office of 
General Counsel (including offices of Regional Counsel) assigned to 
provide legal review or assistance.
    Contracting activity competition advocate means the individual 
designated in writing by the head of the contracting activity (HCA). 
This authority may not be redelegated. The HCA must ensure that the 
designated competition advocate is not assigned any duty or 
responsibility that is inconsistent with the advocacy function. The 
identity of the designated official shall be communicated to procuring 
staff and the Senior Procurement Executive.
    Contracting director means:
    (a) Except in FSS, a director of a Central Office or Regional office 
Division responsible for performing contracting or contract 
administration functions.
    (b) In FSS, a director of a Commodity Center or FSS Bureau.

[[Page 168]]

    Contracting officer's representative (COR), contracting officer's 
technical representative (COTR), or contract administrator means a 
Government employee designated in writing by the contracting officer to 
perform specific limited activities for the contracting officer, such as 
contract administration.
    Debarring official or suspending official means the Senior 
Procurement Executive or a designee.
    Head of the contracting activity means the Deputy Associate 
Administrator for Acquisition Policy (MV); Commissioners of the Federal 
Technology Service (FTS); Federal Supply Service (FSS), or Public 
Buildings Service (PBS); or Regional Administrators. The Deputy 
Associate Administrator for Acquisition Policy serves as the HCA for 
Central Office contracting activities outside of FTS, FSS, and PBS.
    Senior procurement executive means the Deputy Associate 
Administrator for Acquisition Policy.
    Senior program official means a person reporting to, and designated 
by, the HCA to have overall program responsibility for determining how 
the agency will meet its need. The official should have a position of 
authority over the participating offices. Examples include Assistant 
Regional Administrators or Deputy Commissioners.

 PART 503_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 503.1_Safeguards

Sec.

Sec. 503.104 Procurement integrity.

Sec. 503.104-3 Definitions.

Sec. 503.104-9 Contract clauses.

       Subpart 503.2_Contractor Gratuities to Government Personnel


Sec. 503.204 Treatment of violations.

                      Subpart 503.4_Contingent Fees


Sec. 503.404 Contract clause.

             Subpart 503.5_Other Improper Business Practices


Sec. 503.570 Advertising.

Sec. 503.570-1 Policy.

Sec. 503.570-2 Contract clause.

             Subpart 503.7_Voiding and Rescinding Contracts


Sec. 503.702 Definition.

Sec. 503.705 Procedures.

    Authority: 40 U.S.C. 486(c).

    Source: At 64 FR 37204, July 9, 1999, unless otherwise noted.

                        Subpart 503.1_Safeguards



Sec. 503.104  Procurement integrity.



Sec. 503.104-3  Definitions.

    Federal agency procurement as used in FAR 3.104 and in this section, 
also means acquisitions of leasehold interests in real property.



Sec. 503.104-9  Contract clauses.

          Acquisitions of Leasehold Interests in Real Property

    Insert a clause substantially the same as the clause at 552.203-70, 
Price Adjustment for Illegal or Improper Activity, in solicitations and 
contracts for and modifications to leasehold interests in real property 
exceeding $100,000.

       Subpart 503.2_Contractor Gratuities to Government Personnel



Sec. 503.204  Treatment of violations.

    (a) The Senior Procurement Executive, or designee, makes 
determinations under FAR 3.204.
    The Senior Procurement Executive, or designee, takes all the 
following actions:
    (1) Coordinates with legal counsel.
    (2) Initiates proceedings under FAR 3.204(a) by notifying the 
contractor that GSA is considering action against the contractor for a 
violation of the Gratuities clause. Notice is sent by a certified letter 
to the last known address of the party, its counsel, or agent for 
service of process. In the case of a business, notice is sent to any 
partner, principal officer, director, owner or co-owner, or joint 
venture.
    (3) Presumes receipt if no return receipt is received within 10 
calendar days after mailing the notice.

[[Page 169]]

    (b) The contractor has 30 calendar days to exercise its rights under 
FAR 3.204(b), unless the Senior Procurement Executive, or designee, 
grants an extension.
    (c) If there is a dispute of fact material to making a 
determination, the Senior Procurement Executive, or designee, may refer 
the matter to an agency fact-finding official designated by the Chairman 
of the GSA Board of Contract Appeals. Referrals for fact-finding are not 
made in cases arising from a conviction or indictment as defined in FAR 
9.403. If a referral is made, the fact-finding official takes all the 
following actions:
    (1) Gives the contractor an opportunity to dispute material facts 
relating to the determinations under FAR 3.204(a)(1) and (2).
    (2) Conducts proceedings under rules consistent with FAR 3.204(b).
    (3) Schedules a hearing within 20 calendar days of receipt of the 
referral. The contractor or GSA may request an extension for good cause.
    (4) Delivers to the Senior Procurement Executive, or designee, 
written findings of fact (together with a transcription of the 
proceedings, if made) within 20 calendar days after the hearing record 
closes. The findings must resolve any material disputes of fact by a 
preponderance of the evidence.
    (d) The Senior Procurement Executive, or designee, may reject the 
findings of the fact-finding official only if the findings are clearly 
erroneous or arbitrary and capricious.
    (e) In cases arising from conviction or indictment, or in which 
there are no disputes of material fact, the Senior Procurement 
Executive, or designee, conducts the hearing required by FAR 3.204(b).
    (f) If the Gratuities clause was violated, the contractor may 
present evidence of mitigating factors to the Senior Procurement 
Executive, or designee, either orally or in writing, in accordance with 
a schedule the Senior Procurement Executive, or designee, establishes. 
The Senior Procurement Executive, or designee, exercises the 
Government's rights under FAR 3.204(c) only after considering mitigating 
factors.

                      Subpart 503.4_Contingent Fees



Sec. 503.404  Contract clause.

    Insert 552.203-5, Covenant Against Contingent Fees, in solicitations 
and contracts for the acquisition of leasehold interests in real 
property expected to exceed $100,000.

             Subpart 503.5_Other Improper Business Practices



Sec. 503.570  Advertising.



Sec. 503.570-1  Policy.

    GSA policy precludes contractors from referring to GSA contracts in 
commercial advertising in a manner that states or implies the Government 
approves or endorses the product or service or considers it superior to 
other products or services. The intent of this policy is to prevent the 
appearance of Government bias toward any product or service.



Sec. 503.570-2  Contract clause.

    Insert the clause at 552.203-71, Restriction on Advertising, in 
solicitations and contracts, including acquisitions of leasehold 
interests in real property, if the contract amount is expected to exceed 
the simplified acquisition threshold.

             Subpart 503.7_Voiding and Rescinding Contracts



Sec. 503.702  Definition.

    Notice means a letter sent by certified mail with a return receipt 
requested to the last known address of a party, its counsel, or agent 
for service of process. In the case of a business, such notice may be 
sent to any partner, principal officer, director, owner or co-owner, or 
joint venturer. If no return receipt is received within 10 calendar days 
of mailing, receipt is presumed.
    Voiding and rescinding official means the Senior Procurement 
Executive or designee.



Sec. 503.705  Procedures.

    (a) Contracting officer's actions:
    (1) If a contract is tainted by misconduct, consult with assigned 
counsel

[[Page 170]]

to determine if the Government has a common law remedy such as 
avoidance, rescission, or cancellation.
    (2) If the contractor has a final conviction for a violation under 
18 U.S.C. 201-224, you may refer the matter to the voiding and 
rescinding official under FAR 3.705.
    (i) In the referral, identify the final conviction and include the 
information required by FAR 3.705(d)(2) through (5).
    (ii) Coordinate the referral with the Office of Inspector General to 
determine whether to recommend debarment.
    (3) You may postpone a decision to exercise the Government's common 
law right to void, rescind, or cancel a contract until completion of 
legal proceedings against the contractor.
    (b) Voiding and rescinding official's actions:
    (1) The voiding and rescinding official reviews the referral and 
coordinates with assigned counsel and the contracting activity.
    (2) If the official decides to declare void and rescind a contract 
and to recover the amounts expended and the property transferred, the 
official takes both the following actions:
    (i) Issues the notice required by FAR 3.705.
    (ii) Conducts the hearing contemplated by FAR 3.705(c)(3).
    (3) In case of a dispute of material fact about the agency decision, 
the official refers the matter to the fact-finding official designated 
by the Chairman of the GSA Board of Contract Appeals. The voiding and 
rescinding official makes this referral if the dispute of fact relates 
to any of the following:
    (i) Contracts affected by the final conviction.
    (ii) Amounts expended and property transferred by the Government 
under the affected contracts.
    (iii) Identity and value of any tangible benefits received by the 
Government under the affected contracts.
    (4) The voiding and rescinding official issues GSA's final decision 
under FAR 3.705(e) after receiving the fact-finding official's report, 
if a referral was made. The voiding and rescinding official may reject 
the fact-finding official's findings only if they are clearly erroneous 
or arbitrary and capricious.
    (5) The official coordinates the final decision was the contracting 
activity and provides the activity a copy of the decision.
    (c) Fact-finding official's actions: The fact-finding official takes 
all the following actions:
    (1) Gives the contractor an opportunity to dispute material facts.
    (2) Conducts the proceedings under rules consistent with FAR 
3.705(c)(3).
    (3) Schedules a hearing within 20 calendar days after receiving the 
referral. The official may grant extensions for good cause at the 
request of the contractor or GSA.
    (4) Delivers written findings of fact to the voiding and rescinding 
official (together with a transcription of the proceeding, if made) 
within 20 calendar days after the hearing record closes. The findings 
must resolve any material disputes of fact by a preponderance of the 
evidence.

                     PART 504_ADMINISTRATIVE MATTERS

    Subpart 504.4_Safeguarding Classified Information Within Industry

Sec.

Sec. 504.402 General.

Sec. 504.475 Return of classified information.

            Subpart 504.5_Electronic Commerce in Contracting


Sec. 504.500 Scope of subpart.

Sec. 504.502 Policy.

Sec. 504.570 Procedures for using the EPS.

                    Subpart 504.6_Contract Reporting


Sec. 504.602-71 Federal Procurement Data System--Public access to data.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37205, July 9, 1999, unless otherwise noted.

    Subpart 504.4_Safeguarding Classified Information Within Industry



Sec. 504.402  General.

    (a) This subpart:
    (1) Prescribes procedures for safeguarding classified information 
required to be disclosed to contractors in

[[Page 171]]

connection with the solicitation of offers, and the award, performance, 
and termination of contracts.
    (2) Implements the requirements of the Department of Defense's 
Industrial Security Regulation (ISR) and Industrial Security Manual for 
Safeguarding Classified Information (ISM). By agreement, the Department 
of Defense (DOD) will act for, and on behalf of, GSA in rendering 
security services required for safeguarding classified information 
released by GSA to U.S. industry.
    (b) As used in this subpart, the term:
    (1) ``Contractor(s)'' means prospective contractors, subcontractors, 
vendors, and suppliers.
    (2) ``U.S. industry'' means those industries (including educational 
and research institutions) located within the United States, its 
possessions, and the Commonwealth of Puerto Rico.



Sec. 504.475  Return of classified information.

    (a) You must recover classified information unless it has been 
destroyed as provided in paragraph 19 of the ISM. The Government agency 
that provided classified information to a GSA contractor is responsible 
for the return of the information.
    (b) You must ensure that classified information furnished to 
prospective offerors, offerors, or contractors is returned immediately 
after any of the following:
    (1) After bid opening or closing date for receipt of proposals by 
non-responding offerors.
    (2) After contract award by unsuccessful offerors.
    (3) Upon termination or completion of the contract.
    (4) Upon notification that authorization to release classified 
information has been withdrawn.
    (5) After notification that a facility:
    (i) Does not have adequate means to safeguard classified 
information.
    (ii) Has had its security clearance revoked or inactivated.
    (6) Whenever otherwise instructed by the authority responsible for 
the security classification.

            Subpart 504.5_Electronic Commerce in Contracting



Sec. 504.500  Scope of subpart.

    This subpart provides policy and procedure for use of GSA's 
Electronic Posting System (EPS).



Sec. 504.502  Policy.

    (a) The EPS is GSA's primary vehicle for disseminating synopses and 
written solicitations. GSA intends that the EPS will substitute for, not 
supplement, paper copies of solicitations. (Note that FAR 2.101 defines 
``in writing'' or ``written'' to include ``electronically transmitted 
and stored information.'')
    (b) This policy does not apply to orders placed against existing 
contracts, including Federal Supply Service schedule contracts.
    (c) Nothing in this policy limits your authority to obtain oral 
quotations or proposals as authorized by regulation (e.g., FAR 13.106-1 
or FAR 15.203(f)).



Sec. 504.570  Procedures for using the EPS.

    (a) You must use the EPS to issue any synopsis required by FAR part 
5 or GSAR part 505.
    (b) You must issue each written solicitation on the EPS, except as 
provided in paragraphs (c)(2) and (d) of this section.
    (c) Although GSA intends that the EPS will substitute for paper 
copies of solicitations, web-based transactions are not practical in 
some industries or in some geographic areas at this time.
    (1) If you expect that electronic access to a solicitation will 
result in adequate competition, distribute the solicitation only through 
the EPS. Include the following notice in the related synopsis:

    GSA is issuing this solicitation only electronically. Interested 
parties may access the solicitation at http://www.eps.gov. This site 
provides instructions for downloading the solicitation file.

    (2) If you believe that distribution of paper copies is necessary to 
ensure adequate competition, document the file to justify distribution 
of paper copies. Include the notice in paragraph (c)(1) of this section 
in the related synopsis, leaving out the first sentence.

[[Page 172]]

    (d) In some cases, release of construction drawings must be 
controlled to ensure adequate security. In other cases, an exhibit or 
attachment incorporated in a solicitation may not be available 
electronically. In either of these cases, you must explain in both the 
synopsis and the solicitation how interested parties may obtain a copy. 
In addition to the notice required by paragraph (c), include a notice 
substantially the same as follows in both the synopsis and solicitation. 
Tailor the notice as necessary for the particular acquisition.

    This solicitation incorporates documents which are not available 
electronically. See [Identify the solicitation section that lists the 
subject documents]. Interested parties may request copies of these 
documents by writing the Contracting Officer at the address in [Identify 
address block in the solicitation].

    (e) The Electronic Posting System Manual provides detailed 
instructions for using the EPS. The Manual is available at http://
www.eps.gov/buyer.html.

                    Subpart 504.6_Contract Reporting



Sec. 504.602-71  Federal Procurement Data System--Public access to data.

    (a) The FPDS database. The General Services Administration awarded a 
contract for creation and operation of the Federal Procurement Data 
System (FPDS) database. That database includes information reported by 
departments and agencies as required by Federal Acquisition Regulation 
(FAR) Subpart 4.6. One of the primary purposes of the FPDS database is 
to provide information on Government procurement to the public.
    (b) Fee for direct hook-up. To the extent that a member of the 
public requests establishment of real-time integration of reporting 
services to run reports from another application, a one-time charge of 
$2,500 for the original integration must be paid by the requestor. This 
one-time charge covers the setup and certification required for an 
integrator to access the FPDS database and for technical assistance to 
help integrators use the web services. The fee will be paid to the FPDS 
contractor and credited to invoices submitted to GSA by the FPDS 
contractor.

[69 FR 77662, Dec. 28, 2004]

[[Page 173]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                  PART 505_PUBLICIZING CONTRACT ACTIONS

               Subpart 501.1_Dissemination of Information

Sec.

Sec. 505.101 Methods of disseminating information.

           Subpart 505.2_Synopses of Proposed Contract Actions


Sec. 505.202 Exceptions.

Sec. 505.203 Publicizing and response time.

Sec. 505.270 Synopsis of amendments to solicitations.

                    Subpart 505.5_Paid Advertisements


Sec. 505.502 Authority.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37206, July 9, 1999, unless otherwise noted.

               Subpart 505.1_Dissemination of Information



Sec. 505.101  Methods of disseminating information.

    (a) In Regions with a Business Service Center (BSC), you may post 
the notice required by FAR 5.101(a)(2) at the BSC.
    (b) Use GSA's Electronic Posting System (EPS) to issue each synopsis 
required by FAR part 5 or GSAR part 505. When synopsizing a 
solicitation, include the appropriate notice(s) required by 504.570(c) 
and (d).
    (c) For acquisitions involving real property:

------------------------------------------------------------------------
                                                Then you must publicize
  If the acquisition is not exempt under FAR   the proposed acquisition--
         5.202 or GSAR 505.202, and--
------------------------------------------------------------------------
(1) The acquisition is for real property       (1) Either:
 appraisal services estimated to cost $25,000   (i) In local newspapers.
 or more.                                       (ii) In the Commerce
                                                Business Daily through
                                                the EPS.
(2) The acquisition is for leasehold           (2) Either:
 interests in real property estimated to        (i) In local newspapers.
 exceed 10,000 square feet (except lease        (ii) In the Commerce
 construction on a preselected site).           Business Daily through
                                                the EPS.
(3) The acquisition is for a leasehold         (3) In the Commerce
 interest in a building to be constructed on    Business Daily through
 a preselected site.                            the EPS.
------------------------------------------------------------------------

    (d) You may publicize proposed leases of 10,000 square feet or less 
in local newspapers if it will serve to promote competition.

           Subpart 505.2_Synopses of Proposed Contract Actions



Sec. 505.202  Exceptions.

    The Administrator has determined under section 18(c)(3) of the 
Office of Federal Procurement Policy Act, as amended (41 U.S.C. 
416(c)(3)) and Section 8(g)(3) of the Small Business Act, as amended (15 
U.S.C. 644(g)(3)) that:
    (a) Synopsizing in the CBD is not always appropriate for 
acquisitions of leasehold interests in real property (except lease 
construction on a designated site) or real property appraisal services. 
Your may publicize such contract actions following the procedures in 
505.101 and 505.203.
    (b) It is not appropriate or reasonable to publish an advance notice 
of any of the following:
    (1) Acquisitions of works of art, including the design, execution 
and installation of the artwork, under the Art-in-Architecture Program.
    (2) Supplemental agreements to leases of real property involving any 
of the following:
    (i) Expansion requests within the scope of a lease (see 570.403).
    (ii) Lease extensions under the conditions defined in 570.405.
    (iii) Building alterations within the scope of a lease (see 570.5).

[[Page 174]]



Sec. 505.203  Publicizing and response time.

    (a) If you publicize in local newspapers under 505.101(c), ensure 
that the notice appears in local newspapers at least 3 calendar days 
before issuance of the solicitation. Except as provided in paragraph (B) 
of this section, allow at least these minimum response times:
    (1) For leasehold interests in real property, 20 calendar days 
between solicitation issuance and the date established for receipt of 
initial offers.
    (2) For real property appraisal services valued at less than either 
the Trade Agreements Act (TAA) threshold or the North American Free 
Trade Agreement (NAFTA) threshold, 10 calendar days between solicitation 
issuance and the date established for receipt of initial offers. The 
lower of the two thresholds governs.
    (3) For real property appraisal services valued at or over the TAA 
threshold or the NAFTA threshold, 40 calendar days from when the notice 
appears to receipt of initial offers. If the acquisition falls in a 
general category identified in an annual forecast, the period may be 
reduced to as few as 10 days. The lower of the two thresholds governs.
    (b) The following exceptions to the publicizing and response times 
in paragraph (a) of this section apply only to proposed acquisitions of 
leasehold interests in real property:
    (1) For a proposed acquisition conducted using simplified lease 
acquisition procedures (see 570.2), consider the individual acquisition 
and establish a reasonable response time.
    (2) In cases of urgency, provide as much time as possible and 
document the file.



Sec. 505.270  Synopsis of amendments to solicitations.

    Synopsize in the CBD any solicitation amendment when the amendment 
either:
    (a) Increases the anticipated value of the proposed acquisition 
above the dollar threshold requiring synopsis.
    (b) Alters the scope of the proposed acquisition so that increased 
interest of contractors can be reasonably anticipated.

                    Subpart 505.5_Paid Advertisements



Sec. 505.502  Authority.

    (a) Newspapers. The HCA, or designee, must approve publication of 
paid newspaper advertisements. Approval is not required if FAR 5.101 or 
505.101 requires publication. Document the contract file with the 
regulatory citation or written approval to support the use of paid 
newspaper advertisements.
    (b) Other media. Advance approval is not required to advertise in 
other media.

                   PART 509_CONTRACTOR QUALIFICATIONS

            Subpart 509.1_Responsible Prospective Contractors

Sec.

Sec. 509.105 Procedures.

Sec. 509.105-1 Obtaining information.

Sec. 509.105-2 Determinations and documentation.

Sec. 509.106 Preaward surveys.

Sec. 509.106-2 Requests for preaward surveys.

                Subpart 509.2_Qualifications Requirements


Sec. 509.206 Acquisitions subject to qualification requirements.

Sec. 509.206-2 Contract clause.

            Subpart 509.3_First Article Testing and Approval


Sec. 509.306 Solicitation requirements.

Sec. 509.308 Contract clauses.

Sec. 509.308-1 Testing performed by the contractor.

Sec. 509.308-2 Testing performed by the Government.

         Subpart 509.4_Debarment, Suspension, and Ineligibility


Sec. 509.401 Applicability.

Sec. 509.403 Definitions.

Sec. 509.405 Effect of listing.

Sec. 509.405-1 Continuation of current contracts.

Sec. 509.405-2 Restrictions on subcontracting.

Sec. 509.406 Debarment.

Sec. 509.406-1 General.

Sec. 509.406-3 Procedures.

Sec. 509.407 Suspension.

Sec. 509.407-1 General.

Sec. 509.407-3 Procedures.

    Authority: 40 U.S.C. 486(c).

[[Page 175]]


    Source: 64 FR 37207, July 9, 1999, unless otherwise noted.

            Subpart 509.1_Responsible Prospective Contractors



Sec. 509.105  Procedures.



Sec. 509.105-1  Obtaining information.

    (a) From a prospective contractor. In making a determination of 
responsibility, you may use the GSA Form 527, Contractor's Qualification 
and Financial Information, to obtain information regarding financial 
capability from a prospective contractor.
    (b) From Government personnel. Solicit and consider information from 
all appropriate activities, including legal counsel, quality control, 
contract management, credit and finance, and the auditor before 
determining that an offeror is responsible. ``Auditor'' is either:
    (1) The Assistant Inspector General for Auditing (Central Office 
only).
    (2) The Regional Inspector General for Auditing.
    (3) Chief, Credit and Finance Section, the Heartland Region (for an 
evaluation of a prospective contractor's financial competence and 
credit).



Sec. 509.105-2  Determinations and documentation.

    (a) Provide written notification to a prospective contractor you 
determine not responsible. Include the basis for the determination. 
Notification provides the prospective contractor with the opportunity to 
correct any problem for future solicitation.
    (b) Due to the potential for de facto debarment, avoid making 
repeated determinations of nonresponsiblity based on the same past 
performance information.
    (c) To provide for timely consideration of the need to institute 
action to debar a contractor, submit a copy of each nonresponsibility 
determination, other than those based on capacity or financial 
capability, to the debarring official.



Sec. 509.106  Preaward surveys.



Sec. 509.106-2  Requests for preaward surveys.

    Federal Supply Service (FSS). Contracting activities in FSS may use 
GSA Form 353, Performance Evaluation & Facilities Report, in lieu of SF 
1403 through 1406. Complete Section I in accordance with instructions in 
553.370-353-I.

                Subpart 509.2_Qualifications Requirements



Sec. 509.206  Acquisitions subject to qualification requirements.



Sec. 509.206-2  Contract clause.

    Insert 552.209-70, Product Removal from Qualified Products List, in 
solicitations and contracts containing FAR 52.209-1, Qualification 
Requirements.

            Subpart 509.3_First Article Testing and Approval



Sec. 509.306  Solicitation requirements.

    (a) The clauses at FAR 52.209-3 and 52.209-4 do not cover all the 
solicitation requirements described in FAR 9.306. If a solicitation 
contains a testing and approval requirement, you must address the 
requirements in FAR 9.306 (d), (f), (g), (h), (i), and (j). For FSS, the 
clauses prescribed in 509.308 address the requirement in FAR 9.306(h).
    (b) In FSS solicitations that contain FAR 52.209-3, First Article 
Approval--Contractor Testing, or FAR 52.209-4, First Article Approval--
Government Testing, insert 552.209-71, Waiver of First Article Testing 
and Approval Requirement.



Sec. 509.308  Contract clauses.



Sec. 509.308-1  Testing performed by the contractor.

    In FSS solicitations and contracts that will require the contractor 
to perform testing, insert 552.209-72, Supplemental Requirements for 
First Article Approval--Contractor Testing, and FAR 52.209-3, Alternate 
I.

[[Page 176]]



Sec. 509.308-2  Testing performed by the Government.

    In FSS solicitations and contracts that will have the Government 
responsible for first article testing, insert 552.209.73, Supplemental 
Requirements for First Article Approval--Government Testing, and FAR 
52.209-4, Alternate I.

         Subpart 509.4_Debarment, Suspension, and Ineligibility



Sec. 509.401  Applicability.

    This subpart applies to all the following:
    (a) Acquisitions of personal property, nonpersonal services 
(including construction), space in buildings, transportation services 
(Federal Property Management Regulations (FPMR) Subpart 101-40.4).
    (b) The purchase, sale, and disposal of real property.
    (c) Contracts for disposal of personal property (FPMR Subpart 101-
45.6).
    (d) Covered transactions as defined at General Services Property 
Management Regulations (GSPMR) 105-68.110(a).



Sec. 509.403  Definitions.

    Fact-finding official, means the Chairman of the Debarment and 
Suspension Board within the GSA Board of Contract Appeals or a designee.
    Notice means a letter sent by certified mail, return receipt 
requested, to the last known address of a party, its counsel, or agent 
for service of process. In the case of a business, such notice may be 
sent to any partner, principal officer, director, owner or co-owner, or 
joint venturer. If no return receipt is received within 10 calendar days 
of mailing, receipt will then be presumed.



Sec. 509.405  Effect of listing.



Sec. 509.405-1  Continuation of current contracts.

    (a) Consider terminating a current contract under any of the 
following circumstances:
    (1) Any of the circumstances giving rise to the debarment or 
suspension also constitute a default in the contractor's performance of 
the contract.
    (2) The contractor presents a significant risk to the Government in 
completing the contract.
    (3) The conduct that provides the cause of the suspension, proposed 
debarment, or debarment involved a GSA contract.
    (b) Determine which of the following is in the Government's best 
interest:
    (1) Terminate the contract for either convenience or cause.
    (2) Cancel under appropriate contract clauses (e.g., 552.238-73, 
Cancellation).
    (3) Use other available alternatives under:
    (i) FAR 3.2 and 503.2.
    (ii) FAR 3.7 and 503.7.
    (c) Before making a decision, consult with legal counsel and 
consider these factors:
    (1) Seriousness of the cause for debarment or suspension.
    (2) Extent of contract performance.
    (3) Potential costs of termination and reprocurement.
    (4) Need for or urgency of the requirement, contract coverage, and 
the impact of delay for reprocurement.
    (5) Availability of other safeguards to protect the Government's 
interest until completion of the contract.
    (6) Availability of alternate competitive sources to meet the 
requirement (e.g., other multiple award contracts, readily available 
commercial items, etc.).
    (d) The debarring official is the designee under FAR 9.405-1(c).



Sec. 509.405-2  Restrictions on subcontracting.

    The debarring official is the designee under FAR 9.405-2(a).



Sec. 509.406  Debarment.



Sec. 509.406-1  General.

    The debarring official is the designee under FAR 9.406-1(c).



Sec. 509.406-3  Procedures.

    (a) Investigation and referral. (1) Refer to the debarring official 
matters involving serious contract improprieties or performance 
deficiencies. Performance deficiencies that continue over a period of 
time or apply to more than one contract may warrant debarment 
consideration.

[[Page 177]]

    (2) Refer possible criminal or fraudulent activities to the Office 
of the Inspector General (OIG). See 5 CFR 6701.107, Reporting Waste, 
Fraud, Abuse, and Corruption. If, after investigation, the OIG believes 
a cause for debarment exists, it will refer the matter to the debarring 
official for consideration of debarment action.
    (b) Reports. Include in referrals to the debarring official a report 
that contains at least the following:
    (1) The recommendation and supporting rationale.
    (2) A list of parties to be considered for possible debarment, 
including the contractor, principals, and affiliates. Include last known 
home and business addresses, zip codes, and DUNS Number.
    (3) A statement of facts.
    (4) Copies of documentary evidence and a list of witnesses. Include 
addresses and telephone numbers. Determine their availability to appear 
at a fact-finding proceeding and identify the subject matter of their 
testimony.
    (5) GSA's acquisition history with the contractor. Include recent 
experience, copies of the pertinent contracts, and an explanation of 
impact debarment would have on GSA programs. OIG referrals do not 
require this explanation; the debarring official will obtain the 
information directly from the contracting activity(s).
    (6) A list of any known active or potential criminal investigations, 
criminal or civil proceedings, or administrative claims before the Board 
of Contract Appeals.
    (7) A statement regarding the impact of the debarment action on GSA 
programs. This statement is not required for referrals by the Inspector 
General; the debarring official will obtain a statement directly from 
the contracting activity(s).
    (c) Review. The debarring official will review the report, and after 
coordinating with assigned legal counsel, either:
    (1) Initiate debarment action.
    (2) Decline debarment action.
    (3) Request additional information.
    (4) Refer the matter to the OIG for further investigation and 
development of a case file.
    (d) Decisionmaking process. (1) The debarring official will provide:
    (i) Notice of declinations, proposed debarments, and decisions to 
the referring activity.
    (ii) Notice of proposed debarment to each party being considered for 
debarment.
    (iii) Decision notices to each party after considering information 
in the administrative record and information and argument submitted by 
the affected party or parties.
    (2) A party proposed for debarment:
    (i) Has 30 calendar days after receipt of the notice to respond to 
the debarring official or the debarment becomes final.
    (ii) May request and receive a copy of the administrative record 
that was the basis for the proposed debarment. If information is 
withheld, the party will be notified and provided the reason.
    (iii) May request the opportunity to present information and 
argument in person to the debarring official. The debarring official 
will schedule an oral presentation within 20 calendar days of receipt of 
the request, unless a longer period of time is requested by the party. 
An oral presentation is informal and a transcript usually is not made. 
The party may supplement the oral presentation with written information 
and arguments.
    (iv) May identify to the debarring official material facts in 
dispute and the bases. For an action other than one based on a 
conviction of civil judgment, a party may request review and a written 
finding by a fact-finding official.
    (3) The debarring official will determine whether there is a genuine 
dispute of material fact. If so, the debarring official refers the 
matter to a fact-finding official, who will take the following action as 
appropriate:
    (i) Schedule a hearing within 20 calendar days after receipt of a 
request to resolve disputed facts.
    (ii) Grant extensions for good cause.
    (iii) Provide notice of scheduled hearing.
    (iv) Conduct hearings under rules consistent with FAR 9.406-3(b)(2).
    (v) Resolve facts in dispute and provide the debarring official with 
written

[[Page 178]]

findings of fact based on a preponderance of the evidence. The fact-
finding official provides the written findings of fact (together with a 
transcription of the proceeding, unless waived) within 20 calendar days 
after the hearing record closes.



Sec. 509.407  Suspension.



Sec. 509.407-1  General.

    The suspending official is the designee under FAR 9.407-1(d).



Sec. 509.407-3  Procedures.

    (a) General. The procedures in 509.406-3 apply to suspension actions 
except as noted in paragraph (b) of this section.
    (b) Fact-finding. (1) Fact-finding will not be conducted in an 
action:
    (i) Based on an indictment.
    (ii) When the suspending official finds no genuine dispute of 
material facts.
    (2) If the action is not based on an indictment, the suspending 
official must coordinate with the Department of Justice or state 
prosecutorial authority through OIG. Based on the advice received, the 
suspending official will determine if fact-finding would impair 
substantial interests of the Federal or state Government. In an action 
not based on an indictment, a suspended party may:
    (i) Identify to the suspending official material facts in dispute 
and the bases.
    (ii) Request review and a written finding by a fact-finding official 
to resolve genuine disputes of material fact. For procedures involving a 
genuine dispute of material fact, see 509.406-3(d)(3).

                    PART 511_DESCRIBING AGENCY NEEDS

      Subpart 511.1_Selecting and Developing Requirements Documents

Sec.

Sec. 511.104 Use of brand name or equal purchase descriptions.

Sec. 511.104-70 Solicitation provisions.

       Subpart 511.2_Using and Maintaining Requirements Documents


Sec. 511.204 Solicitation provisions and contract clauses.

             Subpart 511.4_Delivery or Performance Schedules


Sec. 511.404 Contract clauses.

                Subpart 511.6_Priorities and Allocations


Sec. 511.600 Scope of subpart.

Sec. 511.601 Definitions.

Sec. 511.602 General.

Sec. 511.603 Procedures.

Sec. 511.604 Solicitation provision and contract clause.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37209, July 9, 1999, unless otherwise noted.

      Subpart 511.1_Selecting and Developing Requirements Documents



Sec. 511.104  Use of brand name or equal purchase descriptions.



Sec. 511.104-70  Solicitation provisions.

    (a) Include the following immediately after each brand name or equal 
item description, with instructions for the offeror to complete the 
information:

    Offering on:

Manufacturer's Name_____________________________________________________
Brand___________________________________________________________________
Model or Part No._______________________________________________________

    (b) If the solicitation does not require samples for ``or equal'' 
offers, include the following notice in the list of brand name or equal 
items or component parts:

                                 Notice

    If you offer other than brand name items identified in this 
solicitation, you must provide adequate information for GSA to determine 
the quality of the product(s) offered.

    (c) If you use brand name or equal purchase descriptions for some 
component parts of an end item, you may limit the application of the 
provision at FAR 52.211-6 to the specified components

[64 FR 37209, July 9, 1999. Redesignated and amended at 65 FR 41378, 
July 5, 2000]

[[Page 179]]

       Subpart 511.2_Using and Maintaining Requirements Documents



Sec. 511.204  Solicitation provisions and contract clauses.

    (a) Construction services. Insert the clause at 552.211-71, Standard 
References, in solicitations and contracts for construction services 
when you expect the contract amount to exceed the simplified acquisition 
threshold, and the solicitation meets either of the following 
conditions:
    (1) The solicitation cites documents or publications not furnished 
with the solicitation.
    (2) The solicitation incorporates documents or publications by 
reference.
    (b) Federal specifications. Insert the clause at 552.211-72, 
Reference to Specifications in Drawings, in solicitations and contracts 
citing Federal specifications which contain drawings.
    (c) Supply contracts that exceed the simplified acquisition 
threshold. (1) Include the clause at 552.211-73, Marking, in 
solicitations and contracts for supplies when deliveries may be made to 
both civilian and military activities and the contract amount is 
expected to exceed the simplified acquisition threshold.
    (2) Include the clause at 552.211-74, Charges for Marking, in 
solicitations and contracts that include the clause at 552.211-73 or a 
similar clause.
    (3) Include the clause at 552.211-75, Preservation, Packaging and 
Packing, in solicitations and contracts for supplies expected to exceed 
the simplified acquisition threshold. You may also include the clause in 
contracts estimated to be at or below the simplified acquisition 
threshold when appropriate. Use Alternate I in solicitations and 
contracts for--
    (i) FSS Schedule 70 and the Consolidated Products and Services 
Schedule containing information technology Special Item Numbers; or
    (ii) Federal Supply Schedules for recovery purchasing (See 
538.7102).
    (4) Insert a clause substantially the same as the clause at 552.211-
76, Charges for Packaging and Packing, in solicitations and contracts 
for supplies to be delivered to GSA distribution centers.
    (d) Supply contracts. Include the clause at 552.211-77, Packing 
List, in solicitations and contracts for supplies, including purchases 
over the micropurchase threshold. Use Alternate I in solicitations and 
contracts for--
    (1) FSS Schedule 70 and the Consolidated Products and Services 
Schedule containing information technology Special Item Numbers; or
    (2) Federal Supply Schedules for recovery purchasing (See 538.7102).

[64 FR 37209, July 9, 1999, as amended at 68 FR 24378, May 7, 2003; 68 
FR 28065, May 18, 2004; 72 FR 4652, Feb. 1, 2007]

             Subpart 511.4_Delivery or Performance Schedules



Sec. 511.404  Contract clauses.

    (a) Supply contracts.--(1) Single award schedules. Insert 552.211-8, 
Time of Delivery, in solicitations and contracts instead of the clause 
at FAR 52.211-8. If you need to show different delivery times for 
different items or groups of items, use Alternate I.
    (2) Multiple award schedules. Insert 552.211-78, Commercial Delivery 
Schedule (Multiple Award Schedule), in solicitations issued and 
contracts awarded under the multiple award schedule program.
    (3) Shelf-life items. Use the following clauses in solicitations and 
contracts that require delivery of shelf-life items within a specified 
number of months from the date of manufacture or production (see 101-
27.206-2 of the Federal Property Management Regulation):
    (i) Insert 552.211-79, Acceptable Age of Supplies, if the required 
shelf-life period is 12 months or less, and lengthy acceptance testing 
may be involved. For items having a limited shelf-life, substitute 
Alternate I when required by the director of the commodity center 
concerned.
    (ii) Insert 552.211-80, Age on Delivery, if the required shelf-life 
period is more than 12 months, or when source inspection can be 
performed within a short time period.
    (4) Stock replenishment contracts. Insert 552.211-81, Time of 
Shipment, in solicitations and stock replenishment contracts that do not 
include the Availability for Inspection, Testing and Shipment/Delivery 
clause at

[[Page 180]]

552.211-83 and require shipment within 45 calendar days after receipt of 
the order. If shipment is required in more than 45 days, use Alternate 
I.
    (5) Notice of shipment. Include 552.211-82, Notice of Shipment, in 
solicitation and contracts for supplies when you need to have a notice 
of shipment from the contractor.
    (6) Indeterminate testing time. Insert 552.211-83, Availability for 
Inspection, Testing and Shipment/Delivery, in solicitations and 
contracts that provide for source inspection by Government personnel and 
that require lengthy testing for which time frames cannot be determined 
in advance. If the contract is for stock items, use Alternate I.
    (b) Construction contracts. Insert the clause at 552.211-84, Non-
Compliance with Contract Requirements, in solicitations and contracts 
for construction when you expect the contract amount to exceed the 
simplified acquisition threshold.

                Subpart 511.6_Priorities and Allocations

    Source: 69 FR 55934, Sept. 16, 2004, unless otherwise noted.



Sec. 511.600  Scope of subpart.

    FAR Subpart 11.6 implements the Defense Priorities and Allocations 
System (DPAS), a Department of Commerce (DOC) regulation (15 CFR part 
700) to assure timely delivery of industrial resources (products, 
materials, and services) in support of approved national defense, 
energy, and civil emergency preparedness (Homeland Security) programs. 
Pursuant to DPAS Delegation 3, DOC delegated GSA the authority to use 
the DPAS in support of the GSA Federal Supply system. This subpart 
implements the DPAS within GSA.



Sec. 511.601  Definitions.

    As used in this subpart--
    Approved program means a program determined as necessary or 
appropriate for priorities and allocations support to promote the 
national defense by the Secretary of Defense, the Secretary of Energy, 
or the Department of Homeland Security Under Secretary for Emergency 
Preparedness and Response under the authority of the Defense Production 
Act, the Stafford Act, and Executive Order 12919, or the Selective 
Service Act and related statutes, and Executive Order 12742. See 
Schedule 1 of 15 CFR part 700 for a list of Delegate Agencies, approved 
programs, and program identification symbols at http://www.bis.doc.gov/
DefenseIndustrialBasePrograms/OSIES/DPAS/Default.htm.
    Authorized person means a Delegate Agency, or other entity either 
permitted under 15 CFR part 700, or explicitly authorized by DOC to 
issue DPAS rated orders.
    Defense Priorities and Allocations System (DPAS) means the 
regulation published at 15 CFR part 700 that requires preferential 
treatment for certain contracts and orders placed by a Delegate Agency 
in support of an approved program.
    Delegate Agency means an agency of the U.S. Government authorized by 
delegation from DOC to place priority ratings on contracts or orders 
needed to support approved programs.
    Rated order means a prime contract, a subcontract, a purchase order, 
or a delivery or task order in support of an approved program issued in 
accordance with the provisions of the DPAS regulation (15 CFR part 700).



Sec. 511.602  General.

    (a) The purpose of the DPAS is to assure the timely availability of 
industrial resources to meet current national defense, energy, and civil 
emergency preparedness program requirements and to provide an operating 
system to support rapid industrial response in a national emergency. The 
primary statutory authority for the DPAS is Title I of the Defense 
Production Act of 1950, as amended, with additional authority from the 
Selective Service Act of 1948, and the Robert T. Stafford Disaster 
Relief and Emergency Assistance Act. Executive Orders 12919 and 12742 
delegate this authority to the DOC to administer the DPAS.The DOC is 
further authorized to redelegate to heads of other departments and 
agencies (Delegate Agencies) authority under the DPAS for the priority 
rating of contracts and orders

[[Page 181]]

in support of approved programs. Within the DOC, the Office of Strategic 
Industries and Economic Security (SIES) is assigned the implementation, 
administration, and compliance responsibilities for the system.
    (b) The DPAS is published in the Code of Federal Regulations at 15 
CFR part 700. This regulation provides an overview, a detailed 
explanation of operations and procedures, and other implementing 
guidance, including information on special priorities assistance and 
compliance.
    (c) Orders placed under DPAS are ``rated orders.'' Rated orders must 
receive preferential treatment only as necessary to meet delivery 
requirements. Rated orders are identified by a rating symbol of either 
``DX'' or ``DO'' followed by a program identification symbol. All ``DO'' 
rated orders have equal priority with each other and take preference 
over unrated orders. All ``DX'' rated orders have equal priority with 
each other and take preference over ``DO'' rated orders and unrated 
orders. A program identification symbol indicates which approved program 
is supported by the rated order.
    (d) Only authorized persons may place an order containing a DPAS 
priority rating.
    (e) Within GSA, the Federal Supply Service (FSS) has been delegated 
the authority to issue rated orders to meet approved national defense, 
energy, and civil emergency preparedness program requirements of the 
supply distribution program. The Commissioner, FSS, shall issue 
additional guidance, as may be necessary, to ensure effective 
implementation of its delegated DPAS authority, such as the exclusions 
listed in paragraph F(2) of the 1998 DOC DPAS Delegation 3.
    (f) Executive Order 12919 defines the jurisdictional limitations as 
set forth in 15 CFR 700.18(b).



Sec. 511.603  Procedures.

    (a) A DPAS rating may be placed against an entire contract at time 
of award or an individual order issued under an existing, otherwise 
unrated, contract.
    (b) When a DPAS rating is placed against an entire contract, the 
contracting officer must include the clause and provision prescribed at 
FAR 11.604, as well as the elements listed in paragraphs (c)(1) through 
(c)(3) of this section (see 15 CFR 700.12).
    (c) When a DPAS rating is placed against an individual order issued 
under an existing, otherwise unrated, contract, the order must include 
the following elements (see 15 CFR 700.12):
    (1) The appropriate priority rating symbol (i.e., either ``DO'' or 
``DX'') along with the program identification symbol. As required by the 
1998 DOC DPAS Delegation 3 to GSA, when GSA contracting officers place 
DO rated orders, they will use program identification symbol K1. When 
placing a DX rated order for other agencies, GSA contracting officers 
will use the requesting agency program identification symbol. When a 
Delegate Agency places its own orders, it uses its own program 
identification symbol. (See Schedule 1 of 15 CFR part 700 for a listing 
of Delegate Agencies, approved programs, and program identification 
symbols.)
    (2) A required delivery date. The words ``as soon as possible'' or 
``immediately'' do not constitute a required delivery date. A specific 
date or a specified number of days ARO (after receipt of order) is 
acceptable.
    (3) The written signature on a manually placed order, or the digital 
signature or name on an electronically placed order of an individual 
authorized to place rated orders.
    (4) A statement that reads substantially as follows:

    ``This is a rated order certified for national defense use, and you 
are required to follow all the provisions of the Defense Priorities and 
Allocations System regulation (15 CFR part 700).''

    (d) Multiple and Single Award Schedule contracts are not rated at 
time of award. Individual DPAS rated orders must include the elements 
listed in paragraphs (c)(1) through (c)(4) of this section.



Sec. 511.604  Solicitation provision and contract clause.

    The contracting officer must insert in full text the clause at 
552.211-15, Defense Priorities and Allocations System Requirements, in 
Single and Multiple Award Schedule solicitations and

[[Page 182]]

resultant contracts, except where the contract is wholly for products, 
materials, or services excluded from DPAS applicability (see 15 CFR 
700.18).

                PART 512_ACQUISITION OF COMMERCIAL ITEMS

    Authority: 40 U.S.C. 486(c).

   Subpart 512.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



Sec. 512.301  Solicitation provisions and contract clauses for the 

acquisition of commercial items.

    (a) Solicitation provisions and clauses. Insert these provisions or 
clauses in solicitations or solicitations and contracts, respectively, 
in accordance with the instructions provided:
    (1) 552.212-70, Preparation of Offer (Multiple Award Schedule), in 
solicitations and contracts issued under the multiple award schedule 
program.
    (2) 552.213-71, Contract Terms and Conditions Applicable to GSA 
Acquisition of Commercial Items, when listed clauses apply. The clause 
provides for incorporation by reference of terms and conditions which 
are, to the maximum extent practicable, consistent with customary 
commercial practice. If necessary, tailor this clause.
    (3) 552.212-72, Contract Terms and Conditions Required to Implement 
Statutes or Executive Orders Applicable to GSA Acquisitions of 
Commercial Items, when listed clauses apply. The clause provides for the 
incorporation by reference of terms and conditions required to implement 
provisions of law or executive orders that apply to commercial item 
acquisitions.
    (4) 552.213-73, Evaluation-Commercial Items (Multiple Award 
Schedule), in multiple award schedule solicitations. Use this provision 
instead of FAR 52.212-2.
    (b) Use of required provisions and clauses. Use only those 
provisions and clauses prescribed in this part. Unless the use of a 
provision or clause prescribed elsewhere in the GSAR is consistent with 
customary commercial practice for the item being acquired, disregard 
contrary instructions. Provisions and clauses prescribed in this part 
will be revised to reflect the applicability of new statutes and 
executive orders.
    (c) Discretionary use of GSAR provisions and clauses. Consistent 
with the limitations contained in FAR 12.302(c), include in 
solicitations and contracts by addendum other GSAR provisions and 
clauses.
    (d) Use of additional provisions and clauses. The Senior Procurement 
Executive must approve the use of a provision or clause that is either 
not:
    (1) Prescribed in the FAR or GSAR for use in contracts for 
commercial items.
    (2) Consistent with customary commercial practice.

[64 FR 37210, July 9, 1999, as amended at 65 FR 41378, July 5, 2000]

[[Page 183]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 513_SIMPLIFIED ACQUISITION PROCEDURES

              Subpart 513.3_Simplified Acquisition Methods

Sec.

Sec. 513.302 Purchase orders.

Sec. 513.302-70 Purchase order and related forms.

Sec. 513.303 Blanket purchase agreements (BPAs).

Sec. 513.303-3 Preparation of BPAs.

Sec. 513.307 Forms.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37211, July 9, 1999, unless otherwise noted.

              Subpart 513.3_Simplified Acquisition Methods



Sec. 513.302  Purchase orders.



Sec. 513.302-70  Purchase order and related forms.

    (a) See GSA Order, Guidance on Use of the Credit Card for Purchases 
(CFO 4200.1), for forms required for purchase card actions.
    (b) Use GSA Form 3000 or 300-1 (pin-feed format), Order for Supplies 
and Services, instead of OF 347, Order for Supplies or Services, when 
making purchases payable through the National Electronic Accounting and 
Reporting (NEAR) System.
    (1) This form may also be used to make other purchases when a 
specific form is not prescribed. It may be used as a delivery or task 
order instead of SF 1449, Solicitation/Contract/Order for Commercial 
Items.
    (2) Prepare and process GSA Form 300 following the instructions at 
553.370-300-I. Use GSA Form 300A or 300-A(1) (pin-feed format), order 
for Supplies or Services (continuation), if additional space is needed.
    (c) Use GSA Form 1458, Motor Vehicle Shop Work Order, Repair and 
Purchase Order, instead of the OF 347 when making purchases in 
connection with the maintenance, servicing or repair of GSA fleet 
management vehicles.
    (d) Use GSA Form 3186, Order for Supplies or Services or GSA Form 
3186-B, Order for Supplies or Services (EDI), instead of OF 347, Order 
for Supplies or Services, when making simplified acquisitions or placing 
orders against established contracts through the FSS-19 system.
    (1) Use GSA Form 3186 for mail orders placed against established 
contracts.
    (2) Document the file for a delivery, task, or purchase order 
transmitted to contractors electronically using Electronic Data 
Interchange (EDI) procedures by generating a GSA Form 3186-B.
    (e) Use GSA Form 8002B, Motor Vehicle Delivery Order, to order fleet 
management vehicles. Do not use this form as a purchase order for 
simplified acquisitions. Use GSA Form 8002A to notify the consignee of 
the status of motor vehicle requisitions.

[64 FR 37211, July 9, 1999, as amended at 65 FR 11247, Mar. 2, 2000]



Sec. 513.303  Blanket purchase agreements (BPAs).



Sec. 513.303-3  Preparation of BPAs.

    (a) Description of agreement. Describe limitations, if any, on the 
geographic area to be served.
    (b) Delivery tickets. Instruct the contractor to include the name of 
the individual placing the order on the delivery ticket. The individual 
receiving the item or service must sign and date the delivery or service 
ticket. Both the supplier and the receiving office must retain a copy of 
the delivery ticket.



Sec. 513.307  Forms.

    You may use the GSA Form 3521, Blanket Purchase Agreement, to 
prepare a blanket purchase agreement.

                         PART 514_SEALED BIDDING

                   Subpart 514.2_Solicitation of Bids

Sec.

Sec. 514.201 Preparation of invitations for bids.

Sec. 514.201-1 Uniform contract format.

Sec. 514.201-2 Part I--The Schedule.

Sec. 514.201-6 Solicitation provisions.

[[Page 184]]


Sec. 514.201-7 Contract clauses.

Sec. 514.202 General rules for solicitation of bids.

Sec. 514.202-4 Bid samples.

Sec. 514.203 Methods of soliciting bids.

Sec. 514.203-1 Transmittal to prospective bidders.

Sec. 514.270 Aggregate awards.

Sec. 514.270-1 Definition.

Sec. 514.270-2 Guidelines for use.

Sec. 514.270-3 Evaluation factors for award.

Sec. 514.270-4 Grouping line items for aggregate award.

Sec. 514.270-5 Evaluation methodologies for aggregate awards.

Sec. 514.270-6 Guidelines for using the weight factors method.

Sec. 514.270-7 Guidelines for using the price list method.

           Subpart 514.4_Opening of Bids and Award of Contract


Sec. 514.407 Mistakes in bids.

Sec. 514.407-3 Other mistakes disclosed before award.

Sec. 514.407-4 Mistakes after award.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37211, July 9, 1999, unless otherwise noted.

                   Subpart 514.2_Solicitation of Bids



Sec. 514.201  Preparation of invitations for bids.



Sec. 514.201-1  Uniform contract format.

    Include the following notice in each solicitation:

    The information collection requirements contained in this 
solicitation/contract, are either required by regulation or approved by 
the Office of Management and Budget pursuant to the Paperwork Reduction 
Act and assigned OMB Control No. 3090-0162.



Sec. 514.201-2  Part I--The Schedule.

    (a) When you use Standard Form 33, Solicitation, Offer and Award, 
include the following cautionary notice:

    Notice to Bidders--Use Item 13 of the Standard Form 33, 
Solicitation, Offer and Award, to offer prompt payment discounts. The 
Prompt Payment clause of this solicitation sets forth payment terms. Do 
not insert any statement in Item 13 which requires payment sooner than 
the time stipulated in the Prompt Payment clause. Example: If you insert 
``NET 20'' in Item 13, GSA will reject your offer as nonresponsive 
because the entry contradicts the 30 day payment terms specified in the 
Prompt Payment clause.

    (b) When you use any other authorized form (e.g., Standard Form 
1447, Solicitation/Contract), include the notice in paragraph (a) of 
this section. Change the reference to the form number, form title, and 
item number accordingly.



Sec. 514.201-6  Solicitation provisions.

    When you will consider all or none bids, insert the provision at 
552.214-70, ``All or None'' Offers, in the solicitation. For 
requirements or indefinite quantity contracts, use Alternate I. Do not 
include this provision in solicitations when you require the bidder to 
submit bids on all items and will make only one award.



Sec. 514.201-7  Contract clauses.

    (a) Stock replenishment contracts. For some stock replenishment 
contracts, individual contractors may be unable to furnish the 
Government's monthly requirements. You may determine that progressive 
awards will be more expedient. In such cases, insert a clause 
substantially the same as the clause 552.214-71, Progressive Awards and 
Monthly Quantity Allocations, in the solicitation and contract.
    (b) Examinations of Records. (1) Insert 552.214-70, Examination of 
Records by GSA, in solicitations and contracts for supplies or services 
that exceed $100,000, and acquisitions of leasehold interests in real 
property that exceed the simplified lease acquisition threshold, that 
meet at least one of the following conditions:
    (i) Involve the use or disposition of Government-furnished property.
    (ii) Provide for advance payments, progress payments based on cost, 
or guaranteed loan.
    (iii) Contain a price warranty or price reduction clause.
    (iv) Include an economic price adjustment clause where the 
adjustment is not based solely on an established, third party index.
    (v) Are requirements, indefinite-quantity, or letter contracts as 
defined in FAR part 16.
    (vi) Contain the provision at FAR 52.223-4, Recovered Materials 
Certification.
    (2) You may modify the clause to define the specific area of audit 
(e.g., the

[[Page 185]]

use or disposition of Government-furnished property). Legal Counsel and 
the Assistant Inspector General--Auditing or Regional Inspector 
General--Auditing, as appropriate, must concur in any modifications to 
the clause.



Sec. 514.202  General rules for solicitation of bids.



Sec. 514.202-4  Bid samples.

    (a) Solicitation requirements. (1) When you require bid samples, 
require bidders to submit samples produced by the manufacturer whose 
products will be supplied under the contract.
    (2) The FAR limits use of bid samples to cases where you cannot 
describe some characteristics of a product adequately in the 
specification or purchase description. This usually applies to 
subjective characteristics. You may determine that you need to examine 
objective characteristics of bid samples to determine the responsiveness 
of a bid. Base your determination on past experience or other valid 
considerations. In the solicitation, separately list ``Subjective 
Characteristics'' and ``Objective Characteristics.''
    (3) A sample provision appears at 552.214-72, Bid Sample 
Requirements. You may use this provision as shown or modify it to fit 
the circumstances of a procurement.
    (b) Handling and disposition of samples. (1) Retain samples from 
accepted bids for the period of contract performance. If you have no 
outstanding claims regarding the contract, dispose of the samples at the 
end of the contract term following the bidder's instructions.
    (2) If you anticipate a claim regarding the contract, retain the bid 
samples until the claim is resolved.
    (3) Retain samples from unsuccessful bids until you make award. 
After award, dispose of these samples following the bidder's 
instructions.
    (c) Using bid samples. Include the information required by FAR 
14.202-4(e) in the solicitation. Provide the number, size, and full 
description of samples with instructions on how to submit bids. List the 
characteristics that you will examine. The list needs to include any 
aspect of the bid sample the acquisition team will examine to determine 
the product(s) acceptability.



Sec. 514.203  Methods of soliciting bids.



Sec. 514.203-1  Transmittal to prospective bidders.

    Prospective bidders, as used in FAR 14.203-1, include both the 
following:
    (a) The incumbent contractor, except when its written response to 
the notice of contract action under FAR subpart 5.2 states a negative 
interest.
    (b) Bidders that responded to recent solicitations for the same or 
similar items.



Sec. 514.270  Aggregate awards.



Sec. 514.270-1  Definition.

    Aggregate award means an arrangement whereby two or more separately-
priced line items are combined for award to that bidder whose bid will 
result in the lowest overall cost to the Government for the line items 
as a group. The individual price for each item does not have to be the 
lowest bid received. (See also the definition of a ``line item'' in FAR 
3.302.)



Sec. 514.270-2  Guidelines for use.

    (a) GSA usually solicits prices and reserves the right to make award 
for individual line items. In some cases it serves GSA's best interest 
to combine two or more line items for an aggregate award. Such cases 
include when:
    (1) Users desire uniformity of design, style, and finish (e.g., 
suites of household furniture).
    (2) The articles will be assembled and used as a unit, and different 
manufacturers' components may not be interchangeable.
    (3) Users have high demand for certain articles, but demand for 
related articles is insufficient to attract competitive bids (e.g., 
various sized of socket wrenches). Awarding the low-demand articles in 
conjunction with the high-demand articles may encourage competition.
    (4) One location (delivery point) has a large requirement, and 
another location has a requirement too small to individually attract 
competitive bids.

[[Page 186]]

    (5) Awarding and administering numerous small contracts for similar 
articles or services is impractical.
    (b) Before deciding to combine items for aggregate award, consider 
the following factors:
    (1) The capability of bidders to furnish the types and quantities of 
supplies or services in the aggregate.
    (2) How grouping delivery points will affect bidders.
    (3) Which combinations will accurately project the lowest overall 
cost to the Government.
    (c) Do not use an aggregate award if it will significantly restrict 
the number of eligible bidders.



Sec. 514.270-3  Evaluation factors for award.

    Clearly state in the solicitation the basis for evaluating bids for 
aggregate award. Require bidders to submit a price on each item within 
the group or a percentage to be added or subtracted from a list price. 
Advise bidders that failure to submit prices as required within a group 
makes a bid ineligible for award for that group.



Sec. 514.270-4  Grouping line items for aggregate award.

    (a) Type of contract. While this section addresses supply contracts 
(articles and delivery points), the same principles apply to service 
contracts (types of services and service areas).
    (b) Effect on compeition. Provide for full and open competition when 
you group items for award. Grouping items for award may preclude a 
significant of firms from bidding. This occurs if firms are unable to 
provide all the types or quanities of supplies or services, or make 
deliveries to the various delivery points included in the prospective 
aggregate group.
    (c) Grouping different articles. Include only related articles in an 
aggregate group. Related articles are those normally manufactured or 
produced by a majority of prospective bidders. Grouping unrelated 
articles often restricts competition unnecessarily.
    (d) Grouping geographic locations or delivery points. Consider the 
following guidelines before deciding to group different geographic 
locations or delivery points:
    (1) A delivery point may have sufficient requirements so that 
individual shipments involve economic production runs and carload or 
truckload quanities. In this case, list it as a separate line item.
    (2) The types of bidders (i.e., small or large firms, manufacturers 
or distributors, etc.) who respond to previous solicitations can provide 
important information. For example, if previous bidders are distributors 
with franchises in certain territories, grouping different territories 
could tend to restrict competition.
    (3) Transportation costs can affect competition and pricing. They 
may constitute a significant portion of the total delivered cost. Obtain 
the advice and assistance of transportation specialists before grouping 
geographic locations or delivery points. Depending upon the supplies 
being acquired:
    (i) Grouping widespread geographic locations or delivery points may 
reduce competition or result in higher prices. It can cause you to lose 
``area pricing'' advantages provided by a supplier with a single 
production point.
    (ii) Conversely, for many small commercial items (hand tools, locks, 
etc.), manufacturers may quote the same price for delivery anywhere in 
the U.S.
    (iii) Tariff boundaries can also affect how manufacturers price 
deliveries to different areas.



Sec. 514.270-5  Evaluation methodologies for aggregate awards.

    (a) Definite quantity contracts without options. For definite 
quantity contracts without options, the evaluated bid price is the total 
bid price, as adjusted for any price-related factors identified in the 
solicitation. This reflects the actual cost to the Government and will 
identify the most advantageous bid.
    (b) Indefinite quantity contracts, requirements contracts, and 
options. Indefinite quantity and requirements contracts use estimated 
quantities. Options involve the probability of whether and when the 
options will be exercised. These situations may result in unbalanced 
bids (see FAR 15.404-1(g)), leading to inaccurate evaluation of the 
projected cost and award to other than the most advantageous bid. To 
avoid

[[Page 187]]

unbalanced bids, GSA has two preferred methods for evaluating bids for 
aggregate awards: weight factors and price list.
    (1) Weight factors method. Assign a weight to each item in a group. 
The weight is based on the portion of quantities that item represents. 
To evaluate bids, multiply each unit price by its weight factor, then 
total the results.
    (2) Price list method. Establish prices for bidders to use as a base 
for preparing their bids. Prepare a list that identifies a base price 
for each item in a group. Bidders bid a percentage factor to add to or 
subtract from the base price.



Sec. 514.270-6  Guidelines for using the weight factors method.

    (a) Use the weight factors method when you have reliable estimates 
for the quantities needed in an acquisition. Reliable estimates of 
quantities form the foundation for:
    (1) Accurate evaluation of the projected cost of each bid.
    (2) An appropriate determination of which bid is most advantageous 
to the Government for the aggregate group.
    (b) Assign a weight factor to each item in a group. Develop the 
weight factor by calculating the portion of the total quantity in a 
defined group that each item represents.
    (c) To evaluate bid prices, first multiply the price bid for each 
item (unit price X quantity) by its weight factor. Then, add the 
subtotals together to project the cost for the aggregate group.
    (d) You may reduce estimated quantities to smaller numbers by a 
common denominator. This may help facilitate the computations involved 
in evaluating bids.
    (e) Consider all price-related factors you identified in the 
solicitation. Award to the responsive and responsible bidder with the 
lowest evaluated overall cost to the Government for the aggregate group. 
This represents the most advantageous bid.



Sec. 514.270-7  Guidelines for using the price list method.

    (a) General. The price list method helps avoid unbalanced bidding 
when you need to make aggregate awards, but lack accurate estimates of 
anticipated quantities. This method establishes base prices for bidders 
to use in preparing their bids.
    (b) Solicitation requirements. When you use the price list methods, 
in the solicitation:
    (1) Include the price list.
    (2) Include an estimate of requirements.
    (3) Require the bidder to express its price as ``net'' or as a 
percentage added to or subtracted from the list prices for each group. 
Require the bidder to quote only one percentage factor for each group. 
This means that the bidder provides one percentage factor that applies 
to every item in a group; not a separate percentage for each item. 
``Net'' indicates the bidder chooses to submit the list prices as its 
bid.
    (4) Identify the percentage factor in paragraph (b)(3) of this 
section as a price related evaluation factor.
    (c) Developing list prices. You may develop price lists using one or 
more of the following sources:
    (1) Industry published prices.
    (2) Industry surveys.
    (3) Government cost estimates based on knowledge of the supplies or 
services and previous contract prices.
    (d) First time use for an item or service. The first time you use 
list prices for an item or service, give prospective bidders an 
opportunity to review the proposed list. Also provide information on how 
GSA will use the list prices. You may provide this information in a 
draft solicitation.
    (e) Balanced prices. Ensure that the list prices for the grouped 
items bear a reasonable and balanced relationship to one another. You 
may use prices from previous awards made using the weight factors method 
to develop price lists. Review those prices first to ensure they did not 
result from unbalanced bidding.
    (f) Evaluation and award. Consider all price-related factors 
identified in the solicitation. Award to the responsive and responsible 
bidder whose percentage factor produces the most favorable price to the 
Government. This represents the most advantageous bid.
    (g) Example. The following illustrates a bidding schedule 
arrangement for a

[[Page 188]]

group of items for aggregate award under the price list method:

 Drills, Twist, High Speed, Under Federal Specification (No. and Date), and Amendment (No. and Date), Amendment
                      (No. and Date) Wire Gauge Sizes, Straight Shank, Short Length, Type C
----------------------------------------------------------------------------------------------------------------
     Item No.        National Stock No.       Drill size       Est. quantity         Unit           List price
----------------------------------------------------------------------------------------------------------------
                                           Group 1 (Items 1 through 5)
----------------------------------------------------------------------------------------------------------------
1.................      5133-00-189-9246  1.................           2,800  Pkg...............          $11.16
2.................      5133-00-189-9247  2.................           2,400  Pkg...............           11.16
3.................      5133-00-189-9248  3.................           2,800  Pkg...............           10.44
4.................      5133-00-189-9249  4.................           1,600  Pkg...............           10.80
5.................      5133-00-189-9250  5.................           2,000  Pkg...............           10.80
----------------------------------------------------------------------------------------------------------------

    The bid on each item above is the list price shown minus/plus ---- 
percent. (Bidder, insert ``net'' or a single percentage amount in the 
blank space and cross out minus or plus, as appropriate.)
    (h) Special considerations for contracts for store stock items. Show 
estimated quantities only if estimates of demand for each item within a 
group can be derived from Government records or verified contractor 
sales reports. Use only current estimates. If you cannot estimate the 
Government's needs, the solicitation may include past orders. (See CG 
Decision, B-209037, 82-2 CPD para 323 (1982).)
    (i) Special considerations for repair and alteration contracts. In 
the solicitation:
    (1) List the estimated quantities for work to be performed during 
both normal working hours and outside of normal working hours.
    (2) State the percent of work anticipated to be performed during 
normal working hours.
    (3) List the unit prices for work to be performed during both normal 
working hours and outside of normal working hours.
    (4) Define ``normal'' in terms of hours and days of the week.
    (5) Advise bidders of the previous year's total expenditures or 
portions of that total attributable to the listed items.
    (6) If you provide quantity estimates, state that the estimates are 
for information only and do not constitute guarantees or commitments to 
order items under the contract.
    (7) Solicit two percentage factors for the line item unit prices 
listed: one for the unit prices for work performed during normal working 
hours and the second for the unit prices for work performed outside of 
normal working hours.
    (8) You may require multiple percentages when the solicitation 
further groups unit prices by trade or business category.
    (9) For the evaluated bid price, add together the following 
percentages:
    (i) The percentage of work performed during normal work hours 
multiplied by the total estimate adjusted by the bidder's percentage 
factor for that portion of the work, plus
    (ii) The percentage of work performed during other than normal 
working hours multiplied by the total estimate adjusted by the bidder's 
percentage factor for that portion of the work.
    (10) Consider other price-related factors identified in the 
solicitation. Make award to the responsible and responsive bidder 
submitting the lowest overall evaluated bid price for the aggregate 
group. This represents the most advantageous bid.

           Subpart 514.4_Opening of Bids and Award of Contract



Sec. 514.407  Mistakes in bids.



Sec. 514.407-3  Other mistakes disclosed before award.

    (a) Delegation of authority by head of the agency. Under FAR 14.407-
3(e), contracting directors (see 502.101) are authorized, without power 
of redelegation, to make:

[[Page 189]]

    (1) The determinations regarding corrections and withdrawals under 
FAR 14.407-3(a), (b), and (c).
    (2) The corollary determinations not to permit withdrawal or 
correction under FAR 14.407-3(d).
    (b) Legal review and approval. Assigned counsel must approve 
determinations by the contracting director and contracting officer 
regarding mistakes in bid.



Sec. 514.407-4  Mistakes after award.

    The contracting director and assigned counsel review and approve 
your determinations under FAR 14.407-4(b) and (c).

                   PART 515_CONTRACTING BY NEGOTIATION

   Subpart 515.2_Solicitation and Receipt of Proposals and Information

Sec.

Sec. 515.204 Contract format.

Sec. 515.204-1 Uniform contract format.

Sec. 515.205 Issuing solicitations.

Sec. 515.209 Solicitation provisions and contract clauses.

Sec. 515.209-70 Examination of records by GSA clause.

                     Subpart 515.3_Source Selection


Sec. 515.305 Proposal evaluation.

Sec. 515.305-70 Use of outside evaluators.

                     Subpart 515.4_Contract Pricing


Sec. 515.408 Solicitation provisions and contract clauses.

 Subpart 515.5_Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes


Sec. 515.506 Postaward debriefing of offerors.

                      Subpart 515.70_Use of Samples


Sec. 515.7002 Procedures.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37214, July 9, 1999, unless otherwise noted.

   Subpart 515.2_Solicitation and Receipt of Proposals and Information



Sec. 515.204  Contract format.



Sec. 515.204-1  Uniform contract format.

    (a) The uniform contract format is not required for leases of real 
property.
    (b) Each solicitation and contract must include the two notices in 
paragraphs (b)(1) and (b)(2) of this section, except that acquisitions 
of interests in real property, must include only the notice in (b)(1):
    (1) ``The information collection requirements contained in this 
solicitation/contract are either required by regulation or approved by 
the Office of Management and Budget pursuant to the Paperwork Reduction 
Act and assigned OMB Control No. 3090-0163.''
    (2) ``GSA's hours of operation are 8:00 a.m. to 4:30 p.m. Requests 
for preaward debriefings postmarked or otherwise submitted after 4:30 
p.m. will be considered submitted the following business day. Requests 
for postaward debriefings delivered after 4:30 p.m. will be considered 
received and filed the following business day.''



Sec. 515.205  Issuing solicitations.

    Potential sources, as used in FAR 15.205, include both of the 
following:
    (a) The incumbent contractor, except when its written response to 
the notice of contract action under FAR subpart 5.2 states a negative 
interest.
    (b) Offerors that responded to recent solicitations for the same or 
similar items.



Sec. 515.209  Solicitation provisions and contract clauses.



Sec. 515.209-70  Examination of records by GSA clause.

             Clause for Other Than Multiple Award Schedules

    (a) For other than multiple award schedule (MAS) contracts, insert 
the clause at 552.215-70, Examination of Records by GSA, in 
solicitations and contracts over $100,000, including acquisitions of 
leasehold interests in real property, that meet any of the following 
conditions:

[[Page 190]]

    (1) Involve the use or disposition of Government-furnished property.
    (2) Provide for advance payments, progress payments based on cost, 
or guaranteed loan.
    (3) Contain a price warranty or price reduction clause.
    (4) Involve income to the Government where income is based on 
operations under the control of the contractor.
    (5) Include an economic price adjustment clause where the adjustment 
is not based solely on an established, third party index.
    (6) Are requirements, indefinite-quantity, or letter type contracts 
as defined in FAR part 6.
    (7) Are subject to adjustment based on a negotiated cost escalation 
base.
    (8) Contain the provision of FAR 52.223-4, Recovered Material 
Certification.
    (b) You may modify the clause at 552.215-70 to define the specific 
area of audit (e.g., the use or disposition of Government-furnished 
property, compliance with the price reduction clause). Counsel and the 
Assistant Inspector General--Auditing or Regional Inspector General--
Auditing, as appropriate, must concur in any modifications to the 
clause.

                   Clause for Multiple Award Schedules

    (c) Insert the clause at 552.215-71, Examination of Records by GSA 
(Multiple Award Schedule), in solicitations and contracts for MAS 
contracts.
    (d) With the Senior Procurement's Executive approval, you may modify 
the clause at 552.215-71 to provide for post-award access to and the 
right to examine records to verify that the pre-award/modification 
pricing, sales or other data related to the supplies or services offered 
under the contract which formed the basis for the award/modification was 
accurate, current, and complete. The following procedures apply:
    (1) Such a modification of the clause must provide for the right of 
access to expire 2 years after award or modification.
    (2) Before modifying the clause, you must make a determination that 
absent such access there is a likelihood of significant harm to the 
Government and submit it to the Senior Procurement Executive for 
approval.
    (3) The determinations under paragraph (d)(2) of this section must 
be made on a schedule-by-schedule basis.

                     Subpart 515.3_Source Selection



Sec. 515.305  Proposal evaluation.

    (a) Restrictions placed on a proposal by the submitter. If you 
receive a proposal with more restrictive conditions than those in the 
provision at FAR 52.215-1(e), ask whether the submitter is willing to 
accept the conditions of the paragraph at FAR 52.215-1(e). If the 
submitter refuses, consult with legal counsel on whether to accept the 
proposal as marked or return it.
    (b) Actions before releasing proposal. Before releasing any proposal 
to an evaluator you must take all the following actions:
    (1) Obtain the signed original ``Conflict of Interest Acknowledgment 
and Nondisclosure Agreement'' from each Government and nongovernment 
individual serving as an evaluator. Use the Acknowledgment/Agreement in 
Figure 515.3-1.
    (i) For employees of other Executive agencies, replace the reference 
in paragraph (c) of the Acknowledgement/Agreement to GSA's supplemental 
standards with a reference to the applicable agency.
    (ii) for nongovernment evaluators, substitute paragraph (c) of the 
Acknowledgement/Agreement with the following language and delete 
paragraph (h):

    (c) I have read and understand the requirements of subsection 27(a) 
and 27(b) of the Office of Federal Procurement Policy Act (41 U.S.C. 
423).

    (2) Attach to each proposal a cover page bearing the following 
notice:

                Government Notice for Handling Proposals

    To anyone receiving this proposal or proposal abstract:
    (1) This proposal must be used and disclosed for evaluation purposes 
only.
    (2) You must apply a copy of this Government notice to any 
reproduction or abstract of this proposal.
    (3) You must comply strictly with any authorized restrictive notices 
which the submitter places on this proposal.

[[Page 191]]

    (4) You must not disclose this proposal outside the Government for 
evaluation purposes except to the extent authorized by, and in 
accordance with, the procedures in 48 CFR 515.305-71.



Sec. 515.305-70  Use of outside evaluators.

    (a) Conditions. To use outside evaluators, you must meet the 
restrictions in FAR 37.203 and 537.2.
    (b) Limitations on disclosing proposal information. You may disclose 
proposal information outside the Government before the Government's 
decision as to contract award only to the extent authorized in this 
section. Disclosure and handling must comply with FAR 3.1 and 503.1.
    (c) Solicitation notice. Include in the solicitation a notice 
substantially as follows:

                    Notice About Releasing Proposals

    (1) The Government intends to disclose proposals received in 
response to this solicitation to nongovernment evaluators.
    (2) Each evaluator will sign and provide to GSA a ``Conflict of 
Interest Acknowledgment and Nondisclosure Agreement.''

 Figure 515.3-1--Conflict of Interest Acknowledgment and Nondisclosure 
                                Agreement

     Conflict of Interest Acknowledgment and Nondisclosure Agreement

    For proposals submitted in response to GAS solicitation no. --------
, I agree to the following:
    (a) To the best of my knowledge and belief, no conflict of interest 
exists that may either:
    (1) Diminish my capacity to impartially review the proposals 
submitted.
    (2) Or result in a biased opinion or unfair advantage.
    (b) In making the above statement, I have considered all the 
following factors that might place me in a position of conflict, real or 
apparent, with the evaluation proceedings:
    (1) All my stocks, bonds, other outstanding financial interests or 
commitments.
    (2) All my employment arrangements (past, present, and under 
consideration).
    (3) As far as I know, all financial interests and employment 
arrangements of my spouse, minor children, and other members of my 
immediate household.
    (c) I have read and understand the requirements of the Standards of 
Ethical Conduct for Employees of the Executive Branch (5 CFR Part 2635) 
and Supplemental Standards of Ethical Conduct for Employees of the 
General Service Administration (5 CFR Part 6701).
    (d) I have a continuing obligation to disclose any circumstances 
that may create an actual or apparent conflict of interest. If I learn 
of any such conflict, I will report it immediately to the Contracting 
Officer. I will perform no more duties related to evaluating proposals 
until I receive instructions on the matter.
    (e) I will use proposal information for evaluation purposes only. I 
understand that any authorized restriction on disclosure placed on the 
proposal by the prospective contractor, prospective subcontractor, or 
the Government applies to any reproduction or abstracted information of 
the proposal.
    (f) I will use my best efforts to safeguard proposal information 
physically. I will not disclose the contents of, nor release any 
information about, the proposals to anyone other than:
    (1) The Source Selection Evaluation Board or other panel assembled 
to evaluate proposals submitted in response to the solicitation 
identified above.
    (2) Other individuals designed by the contracting Officer.
    (g) After completing evaluation, I will return to the Government all 
copies of the proposals and any abstracts.
    (h) GSA Appropriations Act restriction: These restrictions are 
consistent with and do not supersede, conflict with or otherwise alter 
the employee obligations, rights, or liabilities created by Executive 
Order No. 12958; section 7211 of title 5, United States Code (governing 
disclosure of Congress); section 1034 of title 10, United States Code, 
as amended by the Military Whistleblower Protection Act (governing 
disclosure to Congress by members of the military); section 2302(b)(8) 
of title 5, United States Codes, as amended by the Whistleblower 
Protection Act (governing disclosures of illegality, waste, fraud, abuse 
or public health or safety threats); the Intelligence Identities 
Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures 
that could expose confidential Government agents); and the statutes 
which protect against disclosure that may compromise the national 
security, including sections 641, 793, 794, 798, and 952 of title 18, 
United States Code, and section 4(b) of the Subversive Activities Act of 
1950 (50 U.S.C. 783(b). The definitions, requirements, obligations, 
rights, sanctions, and liabilities created by said Executive order and 
listed statutes are incorporated into this agreement and are 
controlling.
________________________________________________________________________
(Enter name of evaluator and organization)
________________________________________________________________________
Date

[[Page 192]]

                     Subpart 515.4_Contract Pricing



Sec. 515.408  Solicitation provisions and contract clauses.

      MAS Requests for Information Other Than Cost or Pricing Data

    (a) You should use Alternative IV of the FAR provision at 52.215-20, 
Requirements for Cost or Pricing Data or Information Other than Cost or 
Pricing Data, for MAS contracts to provide the format for submission of 
information other than cost or pricing data for MAS contracts. To 
provide uniformity in request under the MAS program, you should insert 
the following in paragraph (b) of the provision:
    (1) An offer prepared and submitted in accordance with the clause at 
552.212-70, Preparation of Offer (Multuiple Award Schedule).
    (2) Commercial sales practices. The Offeror shall submit information 
in the format provided in this solicitation in accordance with the 
instructions at Figure 515.4 of the GSA Acquisition Regulation (48 CFR 
515-2), or submit information in the Offeror's own format.
    (3) Any additional supporting information requested by the 
Contracting Officer. The Contracting Officer may require additional 
supporting information, but only to the extent necessary to determine 
whether the price(s) offered is fair and reasonable.
    (4) By submission of an offer in response to this solicitation, the 
Offeror grants the Contracting Officer or an authorized representative 
the right to examine, at any time before initial award, books, records, 
documents, papers, and other directly pertinent records to verify the 
pricing, sales and other data related to the supplies or services 
proposed in order to determine the reasonableness of price(s). Access 
does not extend to Offeror's cost or profit information of other data 
relevant solely to the Offeror's determination of the prices to be 
offered in the catalog or marketplace.
    (b) Insert the following format for commercial sales practices in 
the exhibits or attachments section of the solicitation and resulting 
contract (see FAR 12.303).

                    Commercial Sales Practices Format

Name of Offeror ---------- SIN(s) ------

    Note: Please refer to Clause 552.212-70, Preparation of Offer 
(Multiple Award Schedule), for additional information concerning your 
offer. Provide the following information for each SIN (or group of SINs 
or SubSIN for which information is the same).

    (1) Provide the dollar value of sales to the general public at or 
based on an established catalog or market price during the previous 12-
month period or the offerors last fiscal year: $--------. State 
beginning and ending of the 12 month period. Beginning -------- ending 
--------. In the event that a dollar value is not an appropriate measure 
of the sales, provide and describe your own measure of the sales of the 
item(s).
    (2) Show your total projected annual sales to the Government under 
this contract for the contract term, excluding options, for each SIN 
offered. If you currently hold a Federal Supply Schedule contract for 
the SIN the total projected annual sales should be based on your 
mostrecent 12 months of sales under that contract.

SIN ------------ $------------
SIN ------------ $------------
SIN ------------ $------------

    (3) Based on your written discounting policies (standard commercial 
sales practices in the event you do not have written discounting 
policies), are the discounts and any concessions which you offer the 
Government equal to or better than your best price (discount and 
concessions in any combination) offered to any customer acquiring the 
same items regardless of quantity or terms and conditions? YES---- NO--
-- (See definition of ``concession'' and ``discount'' in 552.212-70.)
    (4)(a) Based on your written discounting policies (standard 
commercial sales practices in the event you do not have written 
discounting policies), provide information as requested for each SIN (or 
group of SINs for which the information is the same) in accordance with 
the instructions at Figure 515.4, which is provided in this solicitation 
for your convenience. The information should be provided in the chart 
below or in an equivalent format developed by the offeror. Rows should 
be added to accommodate as many customers as required.

----------------------------------------------------------------------------------------------------------------
                                                      Column 3  Quantity/                          Column 5
       Column 1  Customer         Column 2  Discount        Volume        Column 4  FOB Term      Concessions
----------------------------------------------------------------------------------------------------------------
 
 
 
----------------------------------------------------------------------------------------------------------------

    (b) Do any deviations from your written policies or standard 
commercial sales practices disclosed in the above chart ever result in 
better discounts (lower prices) or concessions than indicated? YES-- 
NO--. If YES,

[[Page 193]]

explain deviations in accordance with the instructions at Figure 515.4, 
which is provided in this solicitation for your convenience.
    (5) If you are a dealer/reseller without significant sales to the 
general public, you should provide manufacturers' information required 
by paragraphs (1) through (4) above for each item/SINoffered, if the 
manufacturer's sales under any resulting contract are expected to exceed 
$500,000. You must also obtain written authorization from the 
manufacturer(s) for Government access, at any time before award or 
before agreeing to a modification, to the manufacturer's sales records 
for the purpose of verifying the information submitted by the 
manufacturer. The information is required in order to enable the 
Government to make a determination that the offered price is fair and 
reasonable. To expedite the review and processing of offers, you should 
advise the manufacturer(s) of this requirement. The contracting officer 
may require the information be submitted on electronic media with 
commercially available spreadsheet(s). The information may be provided 
by the manufacturer directly to the Government. If the manufacturer's 
item(s) is being offered by multiple dealers/resellers, only one copy of 
the requested information should be submitted to the Government. In 
addition, you must submit the following information along with a listing 
of contact information regarding each of the manufacturers whose 
products and/or services are included in the offer (include the 
manufacturer's name, address, the manufacturer's contact point, 
telephone number, and FAX number) for each model offered by SIN:
    (a) Manufacturer's Name.
    (b) Manufacturer's Part Number.
    (c) Dealer's/Reseller's Part Number.
    (d) Product Description.
    (e) Manufacturer's List Price.
    (f) Dealer's/Reseller's percentage discount from list price or net 
prices.

                             (End of format)

    (c) Include the instructions for completing the commercial sales 
practices format in Figure 515.4 in solicitations issued under the MAS 
program.

    Figure 515.4--Instructions for Commercial Sales Practices Format

    If you responded ``yes'' to question (3), on the Commercial Sales 
Practices Format in paragraph (b) of this section, complete the chart in 
question (4)(a) for the customer(s) who receive your best discount. If 
you responded ``no'', complete the chart in question (4)(a) showing your 
written policies or standard sales practices for all customers or 
customer categories to whom you sell at a price (discounts and 
concessions in combination) that is equal to or better than the price(s) 
offered to the Government under this solicitation or with which the 
Offeror has a current agreement to sell at a discount which equals or 
exceeds the discount(s) offered under this solicitation. Such agreement 
shall be in effect on the date the offer is submitted or contain an 
effective date during the proposed multiple award schedule contract 
period. If your offer is lower than your price to other customers or 
customers categories, you will be aligned with the customer or category 
of customer that receives your best price for purposes of the Price 
Reductions clause at 552.238-75. The Government expects you to provide 
information required by the format in accordance with these instructions 
that is, to the best of your knowledge and belief, current, accurate, 
and complete as of 14 calender days prior to its submission. You must 
also disclose any changes in your price list(s), discounts and/or 
discounting policies which occur after the offer is submitted, but 
before the close of negotiations. If your discount practices vary by 
model or product line, the discount information should be by model or 
product line as appropriate. You may limit the number of models or 
product lines reported to those which exceed 75% of actual historical 
Government sales (commercial sales may be substituted if Government 
sales are unavailable) value of the special item number (SIN).

   Column 1--Identify the Applicable Customer or Category of Customer

    A ``customer'' is any entity, except the Federal Government, which 
acquires supplies or services from the Offeror. The term customer 
includes, but is not limited to original equipment manufacturers, value 
added resellers, state and local Governments, distributors, educational 
institutions (an elementary, junior high, or degree granting school 
which maintains a regular faculty and established curriculum and an 
organized body of students), dealers, national accounts, and end users. 
In any instance where the Offeror is asked to disclose information for a 
customer, the Offeror may disclose information by category of customer 
if the Offeror's discount policies or practices are the same for all 
customers in the category. (Use a separate line for each customer or 
category of customer.)

                     Column 2--Identify the Discount

    The term ``discount'' is as defined in solicitation clause 552.212-
70, Preparation of Offer (Multiple Award Schedule). Indicate the best 
discount (based on your written discounting policies or standard 
commercial discounting practices if you do not have written discounting 
policies) at which you sell to the customer or category of customer 
identified in column 1, without regard to quantity; terms and conditions 
of the agreements under which the discounts are given; and

[[Page 194]]

whether the agreements are written or oral. Net prices or discounts off 
of other price lists should be expressed as percentage discounts from 
the price list which is the basis of your offer. If the discount 
disclosed is a combination of various discounts (prompt payment, 
quantity, etc.), the percentage should be broken out for each type of 
discount. If the price lists which are the basis of the discounts given 
to the customers identified in the chart are different than the price 
list submitted upon which your offer is based, identify the type or 
title and date of each price list. The contracting officer may require 
submission of these price lists. To expedite evaluation, offerors may 
provide these price lists at the time of submission.

           Column 3--Identify the Quantity or Volume of Sales

    Insert the minimum quantity or sales volume which the identified 
customer or category of customer must either purchase/order, per order 
or within a specified period, to earn a discount indicate the time 
period.

  Column 4--Indicate the FOB Delivery Term for Each Identified Customer

    See FAR 47.3 for an explanation of FOB delivery terms.

  Column 5--Indicate Concessions Regardless of Quantity Granted to the 
               Identified Customer or Category of Customer

    Concessions are defined in solicitation clause 552.12-70, 
Preparation of Offers (Multiple Award Schedule). If the space provided 
is inadequate, the disclosure should be made on a separate sheet by 
reference.
    If you respond ``yes'' to question 4(b) in the Commercial Sales 
Practices Format, provide an explanation of the circumstances under 
which you deviate from your written policies or standard commercial 
sales practices disclosed in the chart on the Commercial Sales Practices 
Format and explain how often they occur. Your explanation should include 
a discussion of situations that lead to deviations from standard 
practice, an explanation of how often they occur, and the controls you 
employ to assure the integrity of your pricing. Examples of typical 
deviations may include, but are not limited to, one time goodwill 
discounts to charity organizations or to compensate an otherwise 
disgruntled customer; a limited sale of obsolete or damaged goods; the 
sale of sample goods to a new customer, or the sales of prototype goods 
for testing purposes.
    If deviations from your written policies or standard commercial 
sales practices disclosed in the chart on the Commercial Sales Practices 
Format are so significant and/or frequent that the Contracting Officer 
cannot establish whether the price(s) offered is fair and reasonable, 
then you may be asked to provide additional information. The Contracting 
Officer may ask for information to demonstrate that you have made 
substantial sales of the item(s) in the commercial market consistent 
with the information reflected on the chart on the Commercial Sales 
Practices Format, a description of the conditions surrounding those 
sales deviations, or other information that may be necessary in order 
for the Contracting Officer to determine whether your offered price(s) 
is fair and reasonable. In cases where additional information is 
requested the Contracting Officer will target the request in order to 
limit the submission of data to that needed to establish the 
reasonableness of the offered price.

                             (End of figure)

    (d) Insert the clause at 552.215-72, Price Adjustment--Failure to 
Provide Accurate Information, in solicitations and contracts under the 
MAS program.
    (e) You should use Alternate IV of FAR 52.215-21, Requirements for 
Cost or Pricing Data or Information Other Than Cost or Pricing Data--
Modifications, to provide for submission of information other than cost 
or pricing data for MAS contracts. To provide for uniformity in requests 
under the MAS program, you should insert the following in paragraph (b) 
of the clause:
    (1) Information required by the clause at 552.243-72, Modifications 
(Multiple Award Schedule).
    (2) Any additional supporting information requested by the 
Contracting Officer. The Contracting Officer may require additional 
supporting information, but only to the extent necessary to determine 
whether the price(s) offered is fair and reasonable.
    (3) By submitting a request for modification, the Contractor grants 
the Contracting Officer or an authorized representative the right to 
examine, at any time before agreeing to a modification, books, record, 
documents, papers, and other directly pertinent records to verify the 
pricing, sales and other data related to the supplies or services 
proposed in order to determine the reasonableness of price(s). Access 
does not extent to Contractor's cost or profit information or other data 
related solely to the Contractor's determination of the prices to be 
offered in the catalog or marketplace.

[64 FR 37214, July 9, 1999, as amended at 65 FR 11247, Mar. 2, 2000]

[[Page 195]]

 Subpart 515.5_Preaward, Award, and Postaward Notifications, Protests, 
                              and Mistakes



Sec. 515.506  Postaward debriefing of offerors.

    For purposes of determining the date of receipt of a request for a 
post award debriefing, GSA's hours of operation are 8:00 a.m. to 4:30 
p.m. Request received after 4:30 p.m. will be considered received the 
following business day.

                      Subpart 515.70_Use of Samples



Sec. 515.7002  Procedures.

    (a) Unsolicited samples. The reference to FAR 14.404-2(d) in FAR 
14.202-4(g) does not apply.

    However, qualifications in the proposal that are at variance with 
the Government's requirements, constitute deficiencies. Resolve these as 
provided in FAR 15.306.

    (b) Solicitation requirements. (1) Use the clause at FR 52.214-20. 
The second sentence in paragraph (c) of the clause does not apply. 
Substitute a sentence substantially as follows:

    Failure of the bid samples to conform to all the required 
characteristics listed in the solicitation constitutes a deficiency in 
the proposal (see FAR 15.306).

    (2) In addition to listing subjective characteristics that you 
cannot adequately describe in the specification, you may list and 
evaluate objective characteristics. To include objective 
characteristics, you must determine that examination of such 
characteristics is essential to the acquisition of any acceptable 
product. Base your determination on past experience or other valid 
considerations.
    (c) FAR 52.215-1(c)(3) applies to samples received after the time 
set for receipt of offers.

                       PART 516_TYPES OF CONTRACTS

                   Subpart 516.2_Fixed Price Contracts

Sec.

Sec. 516.203-4 Contract clauses.

               Subpart 516.5_Indefinite-Delivery Contracts


Sec. 516.506 Solicitation provisions and contract clauses.

   Subpart 516.6_Time-and-Materials, Labor-Hour, and Letter Contracts


Sec. 516.603 Letter contracts.

Sec. 516.603-3 Limitations.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37218, July 9, 1999, unless otherwise noted.

                   Subpart 516.2_Fixed Price Contracts



Sec. 516.203-4  Contract clauses.

    (a) Multiple award schedules. Do not use FAR 52.216-2, 52.216-3, or 
52.216-4 in negotiated acquisitions based on discounts from established 
commercial catalogs or pricelists. Instead, use:
    (1) 552.216-70, Economic Price Adjustment--FSS Multiple Award 
Schedule Contracts, in a 1-year solicitation or contract.
    (2) 552.216-70 (Alternate I) in multiyear solicitations and 
contracts.
    (b) Stock or Special Order Program Contracts. In multiyear 
solicitations and contracts, after making the determination required by 
FAR 16.203-2, use 552.216-71, Economic Price Adjustment-Stock and 
Special Order Program Contract, or a clause prepared as authorized in 
paragraph (a)(2)(ii) of this subsection.
    (1) If the contract includes one or more options to extend the term 
of the contract, use the clause with its Alternate I or a clause 
substantially the same as 552.216-71 with its Alternate I suitably 
modified.
    (2) In a contract requiring a minimum adjustment before the price 
adjustment mechanism is effectuated, use the basic clause with Alternate 
II or with Alternate I and Alternative II.
    (3) If the Producer Price Index is not an appropriate indicator for 
price adjustment, modify the clause to use an alternate indicator for 
adjusting prices. Similarly, if other aspects of 552.216-71 are not 
appropriate, use an alternate clause following established procedures.
    (c) Adjustments based on cost indexes of labor or material. (1) If 
you decide to

[[Page 196]]

provide for adjustments based on cost indexes of labor or material, 
prepare a clause that defines each of the following elements:
    (i) The type of labor and/or material subject to adjustment.
    (ii) The labor rates, including any fringe benefits and/or unit 
prices of materials that may be increased or decreased.
    (iii) The index(es) that will be used to measure changes in price 
levels and the base period or reference point from which changes will be 
measured.
    (iv) The period during which the price(s) will be subject to 
adjustment.
    (2) The contracting director must approve use of this clause.

               Subpart 516.5_Indefinite-Delivery Contracts



Sec. 516.506  Solicitation provisions and contract clauses.

    (a) In solicitations and contracts for stock or special order 
program items, when the contract authorizes FSS and other activities to 
issue delivery or task orders, insert the clause at 552.216-72, 
Placement of Orders. If only FSS will issue delivery or task orders, 
insert the clause with its Alternate I.
    (b) In solicitations and contracts for single or multiple award 
schedule program items, insert the clause at 552.216-72, Placement of 
Orders, with its Alternate II.
    (c) In solicitations and contracts for FSS Schedule 70 and the 
Consolidated Products and Services Schedule containing information 
technology Special Item Numbers, use 552.216-72, Placement of Orders, 
Alternate III, instead of Alternate II.
    (d) In solicitations and contracts for Federal Supply Schedules for 
recovery purchasing (See 538.7102), use 552.216-72, Placement of Orders, 
Alternate IV, instead of Alternate II.
    (e) If the clause at 552.216-72 is prescribed, insert the provision 
at 552.216-73, Ordering Information, in solicitations for stock items 
and in other FSS solicitations. Use 552.216-73 Alternate I when 552.216-
72 Alternate I is prescribed. Use 552.216-73 Alternate II when 552.216-
72 Alternate II, Alternate III, or Alternate IV are prescribed.

[64 FR 37218, July 9, 1999, as amended at 68 FR 24378, May 7, 2003; 69 
FR 28065, May 18, 2004; 72 FR 4652, Feb. 1, 2007]

   Subpart 516.6_Time-and-Materials, Labor-Hour, and Letter Contracts



Sec. 516.603  Letter contracts.



Sec. 516.603-3  Limitations.

                    Architect-Engineer (A-E) Services

    (a) Requirement for a price proposal. Before you award a letter 
contract, the proposed A-E must provide a price proposal for the non-
design effort.
    (b) Contents of each letter contract. You must include the following 
information in the letter contract:
    (1) The scope. If you include the design effort, only authorize the 
A-E to perform those services that are independent of the design effort 
(for example, feasibility studies, existing facility surveys or site 
investigation, etc.). Do not authorize the A-E to begin the design 
effort before the letter contract is definitized.
    (2) A definitization schedule. Include dates for each of the 
following:
    (i) Submission of the design fee proposal.
    (ii) Start of negotiations.
    (iii) Definitization. This date must be no later than 90 days after 
the date of the letter contract.
    (3) A limitation on the Government's liability for the non-design 
effort to be performed under the contract. Insert this amount in FAR 
52.216-24, Limitation of Government Liability.
    (c) Unilateral price decision. If you must issue a unilateral price 
decision, the maximum contract amount must not exceed a reasonable price 
for the excludable items plus the 6 percent statutory fee limitation for 
the project.

                  PART 517_SPECIAL CONTRACTING METHODS

                   Subpart 517.1_Multiyear Contracting

Sec.

Sec. 517.109 Contract clauses.

[[Page 197]]

                          Subpart 517.2_Options


Sec. 17.200 Scope of subpart.

Sec. 17.202 Use of options.

Sec. 17.203 Solicitations.

Sec. 17.207 Exercise of options.

Sec. 17.208 Solicitation provisions and contract clauses.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37218, July 9, 1999, unless otherwise noted.

                   Subpart 517.1_Multiyear Contracting



Sec. 517.109  Contract clauses.

    Use of FAR 52.217-2, Cancellation Under Multi-year Contracts, is 
optional in multiyear contracts authorized by 40 U.S.C. 490(a)(14) for 
maintenance and repair of fixed equipment in federally-owned buildings 
and services and 40 U.S.C. 481(a)(3) for public utility services.

                          Subpart 517.2_Options



Sec. 517.200  Scope of subpart.

    (a) This subpart applies to all GSA contracts for supplies and 
services, including:
    (1) Services involving construction, alteration, or repair 
(including dredging, excavating, and painting) of buildings, bridges, 
roads, or other kinds of real property.
    (2) Architect-engineer services.
    (b) If a requirement in this subpart is inconsistent with FAR 17.2, 
this subpart takes precedence.



Sec. 517.202  Use of options.

    (a) Supplies or services. (1) You should use options when they meet 
one or more of the following objectives:
    (i) Reduce procurement lead time and associated costs.
    (ii) Ensure continuity of contract support.
    (iii) Improve overall contractor performance.
    (iv) Facilitate longer term contractual relationships with those 
contractors that continually meet or exceed quality performance 
expectations.
    (2) An option is normally in the Government's interest in the 
following circumstances:
    (i) You anticipate a need for additional supplies or services during 
the contract term.
    (ii) Multiyear contracting authority is not available or its use is 
inappropriate and you anticipate a need for additional supplies or 
services beyond the initial contract term.
    (iii) There is a need for continuity of supply or service support.
    (iv) Funds are not available for the entirety of the Government's 
needs, but are likely to become available during the contract term.
    (v) The initial contract will be used to evaluate the performance of 
an emerging small business.
    (3) Do not use an option if the market price is likely to change 
substantially and an economic price adjustment clause inadequately 
protects the Government's interest.
    (b) Construction. For limitations on the use of options, see 536.213 
and 536.270.



Sec. 517.203  Solicitations.

    A solicitation that includes an option to extend should inform 
offerors that the contract could result in a long term contractual 
relationship subject to both of the following conditions:
    (a) Continuing need by GSA.
    (b) Level of contract performance that at least meets GSA's quality 
performance expectations.



Sec. 517.207  Exercise of options.

    Before exercising an option, you must:
    (a) Synopsize it unless you meet of the following conditions:
    (1) The option was evaluated as part of the original competition.
    (2) The contract action meets an exception in FAR 5.202.
    (b) Conclude that the contractor's performance under the contract 
met or exceeded the Government's expectation for quality performance, 
unless another circumstance justifies an extended contractual 
relationship.
    (c) Determine that the option price is fair and reasonable.



Sec. 517.208  Solicitation provisions and contract clauses.

    (a) For solicitations under FSS's Stock or Special Order Program, 
insert

[[Page 198]]

a provision substantially the same as the provision at 552.217-70, 
Evaluation of Options, if both of the following conditions apply:
    (1) The solicitation contains an option to extend the term of the 
contract.
    (2) The contract will be fixed price and contain an economic price 
adjustment clause.
    (b) Insert the provision at 552.217-71, Notice Regarding Option(s), 
or a similar provision, in solicitations that include an option for 
increased quantities of supplies or services or an option to extend.

[[Page 199]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 519_SMALL BUSINESS PROGRAMS

               Subpart 519.5_Set-Asides for Small Business

Sec.

Sec. 519.508 Soliciation provisions for contract clauses.

         Subpart 519.7_The Small Business Subcontracting Program


Sec. 519.708 Contract clauses.

Sec. 519.708-70 Solicitation provisions.

 Subpart 519.8_Contracting With the Small Business Administration (The 
                              8(a) Program)


Sec. 519.870 Direct 8(a) contracting.

Sec. 519.870-8 Contract clauses.

    Subpart 519.12_Small Disadvantaged Business Participation Program


Sec. 519.1202 Evaluation factor or subfactor.

Sec. 519.1202-2 Applicability.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37219, July 9, 1999, unless otherwise noted.

               Subpart 519.5_Set-Asides for Small Business



Sec. 519.508  Solicitation provisions for contract clauses.

    Insert 552.219-70, Allocation of Orders--Partially Set-Asides Items, 
in solicitations and requirements type supply contracts that are 
partially set aside for small business.

         Subpart 519.7_The Small Business Subcontracting Program



Sec. 519.708  Contract clauses.



Sec. 519.708-70  Solicitation provisions.

    Insert the following provisions as directed:
    (a) 552.219-71, Notice to Offerors of Subcontracting Plan 
Requirements, on the cover page of solicitations containing the clause 
at FAR 52.219-9, Small Business Subcontracting Plan.
    (b) 552.219-72, Preparation, Submission, and Negotiations of 
Subcontracting Plans, in solicitations requiring submission of the 
subcontracting plan with initial offers.
    (c) 552.219-73, Goals for Subcontracting Plan as follows:
    (1) Use the basic provision in sealed bid solicitations containing 
FAR 52.219-9 if you are able to establish realistic target goals.
    (2) Use Alternate I in:
    (i) sealed bid solicitations if you cannot establish target goals.
    (ii) Negotiated solicitations that include FAR 52.219-9, but do not 
include 552.219-72.

 Subpart 519.8_Contracting With the Small Business Administration (The 
                              8(a) Program)



Sec. 519.870  Direct 8(a) contracting.



Sec. 519.870-8  Contract clauses.

    (a) Insert the following clauses in solicitations, contracts, and 
orders issued under the MOU:
    (1) Insert the clause at 552.219-74, Section 8(a) Direct Award.
    (2) Insert the clause at FAR 52.219-14, Limitation on 
Subcontracting.
    (3) Insert the clause at FAR 52.219-18, Notification of Competition 
Limited to Eligible 8(a) Concerns, Substitute the following paragraph 
for paragraph (c) of the clause. Add the word ``Deviation'' at the end 
of the clause title.

    (c) Any award resulting from this solicitation will be made directly 
by the Contracting Officer to the successful 8(a) offeror selected 
through the evaluation criteria set forth in this solicitation.

    (b) Do not use the clauses at FAR 52.219-11, Special 8(a) Contract 
Conditions, FAR 52.219-12, Special 8(a) Subcontract Conditions, or FAR 
52.219-17, Section 8(a) Award.

[[Page 200]]

    Subpart 519.12_Small Disadvantaged Business Participation Program



Sec. 519.1202  Evaluation factor or subfactor.



Sec. 519.1202-2  Applicability.

    In addition to the exception in FAR 19.1202-2, do not evaluate the 
extent of participation of SDB concerns in performance of multiple award 
schedule contracts when all fair and reasonable offers from responsible 
sources are accepted.

      PART 522_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

Sec.

Sec. 522.001 Defintion.

                   Subpart 522.1_Basic Labor Policies


Sec. 522.101 Labor relations.

Sec. 522.101-1 General.

Sec. 522.103-5 Contract clauses.

   Subpart 522.4_Labor Standards for Contracts Involving Construction


Sec. 522.406 Administration and enforcement.

Sec. 522.406-6 Payrolls and statements.

               Subpart 522.8_Equal Employment Opportunity


Sec. 522.803 Responsibilities.

Sec. 522.804 Affirmative action programs.

Sec. 522.804-1 Nonconstruction.

Sec. 522.805 Procedures.

Sec. 522.807 Exemptions.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37220, July 9, 1999, unless otherwise noted.



Sec. 522.001  Definition.

    Agency labor advisory, as used in this part, means the Director of 
the GSA Acquisition Policy Division, Office of Acquisition Policy.

                   Subpart 522.1_Basic Labor Policies



Sec. 522.101  Labor relations.



Sec. 522.101-1  General.

    (a) GSA personnel performing official duties must maintain GSA's 
impartiality in disputes between labor and contractor management by 
refraining from involvement in or expressing a position on:
    (1) Labor negotiations between contractors and unions.
    (2) The merits of any dispute between labor and a contractor's 
management.
    (b) The Office of General Counsel (OGC) and the agency labor 
advisor:
    (1) Serve as focal points on contractor labor relations.
    (2) Initiate contact on contractor labor relations matters with 
national offices of labor organizations, Government departments, 
agencies or other governmental organizations.
    (3) Serve as a clearinghouse for information on labor laws 
applicable to Government acquisitions.
    (4) Respond to questions involving FAR Part 22, this part, or other 
contractor labor relations matters concerning GSA acquisition programs. 
OGC determines the agency's legal position.



Sec. 522.103-5  Contract clauses.

    Insert FAR 52.222-1, Notice to the Government of Labor Disputes, in 
solicitations and contracts for items on the DoD Master Urgency List.

   Subpart 522.4_Labor Standards for Contracts Involving Construction



Sec. 522.406  Administration and enforcement.



Sec. 522.406-6  Payrolls and statements.

   Statement From Prime Contractors or Subcontractors That Personally 
                              Perform Work

    (a) Weekly payrolls and statements of compliance with respect to 
payment of wages are not required from a prime contractor or a 
subcontractor that personally performs work.
    (b) Instead, a prime contractor or a subcontractor that personally 
performs work must submit weekly certified statements clearly showing 
the following information:
    (1) The individual's contractual relationship.
    (2) The scope and date(s) the individual performed the work.
    (3) The individual received no wages for the labor performed.

[[Page 201]]

    (4) No mechanics or laborers were employed in the prosecution of the 
work.
    (c) Use GSA Form 618-D, Statement to be Submitted When Work is 
Performed Personally, to furnish this information.

               Subpart 522.8_Equal Employment Opportunity



Sec. 522.803  Responsibilities.

    Submit questions on the applicability of E.O. 11246 and implementing 
regulations to assigned legal counsel.



Sec. 522.804  Affirmative action programs.



Sec. 522.804-1  Nonconstruction.

    (a) The requirements of FAR 22.804 also apply to each contractor and 
subcontractor with 50 or more employees who either:
    (1) Serves as a depository of Government funds.
    (2) Is a financial institution serving as an issuing and paying 
agent for U.S. savings bonds and savings notes.
    (b) Contractors, subcontractors, and financial institutions must 
develop a written affirmative action compliance program for each of its 
establishments even if the amount held is less than $50,000.



Sec. 522.805  Procedures.

    (a) To determine whether the contract meets the threshold in FAR 
22.805(a), include the value of the basic contract plus priced options. 
A contract modification exercising a priced option is not a contract 
award under FAR 22.805(a)(1)(ii) and does not a require a preaward 
clearance.
    (b) Submit preaward review requests directly.

                  Furnishing Information to Contractors

    (c) In addition to the poster required by FAR 22.805(b), provide 
each nonexempt contractor a copy of SF 100.



Sec. 522.807  Exemptions.

    The agency labor advisor submits a request for exemption.

 PART 523_ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY AND DRUG-FREE 
                                WORKPLACE

  Subpart 523.3_Hazardous Materials Identification and Material Safety 
                                  Data

Sec.

Sec. 523.303 Contract clause.

Sec. 523.370 Solicitation provision.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37220, July 9, 1999, unless otherwise noted.

  Subpart 523.3_Hazardous Materials Identification and Material Safety 
                                  Data



Sec. 523.303  Contract clause.

    (a) Insert 552.223-70, Hazardous Substances, in solicitations and 
contracts for packaged items subject to the Federal Hazardous Substances 
Act and the Hazardous Materials Transportation Act.
    (b) Insert 552.223-71, Nonconforming Hazardous Materials, in 
solicitations and contracts for supplies that contain hazardous 
materials.



Sec. 523.370  Solicitation provision.

    Insert 552.223-72, Hazardous Material Information, in any 
solicitation that provides for delivery of hazardous materials on an 
f.o.b. origin basis.

                      PART 525_FOREIGN ACQUISITION

Subpart 525.1--Buy American Act-Supplies [Reserved]

                Subpart 525.3_Balance of Payments Program

Sec.

Sec. 525.302 Policy.

Sec. 525.302-70 Procurements for agencies under the Foreign Assistance 
          Act.

       Subpart 525.5_Evaluating Foreign Officers_Supply Contracts


Sec. 525.570 Procurement of hand or measuring tools or stainless steel 
          flatware for DOD.

       Subpart 525.11_Solicitation Provisions and Contract Clauses


Sec. 525.1101 Acquisition of supplies.


[[Page 202]]


    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37221, July 9, 1999, unless otherwise noted.

Subpart 525.1--Buy American Act-Supplies [Reserved]

                Subpart 525.3_Balance of Payments Program



Sec. 525.302  Policy.



Sec. 525.302-70  Procurements for agencies under the Foreign Assistance 
          Act.

    GSA procurements made directly for other agencies of items to be 
used outside the United States are made the Balance of Payments Program. 
The only exception is if GSA contracts as the agent for an agency 
governed by the Foreign Assistance Act (22 U.S.C. 2151 et seq.). If this 
exception applies, the contract will be governed by the policies and 
procedures of the agency instead of FAR 25.3 and 525.3. For example, GSA 
sometimes acts as agent for the Agency for International Development and 
the Bureau of International Narcotics Matters.

       Subpart 525.5_Evaluating Foreign Officers_Supply Contracts



Sec. 525.570  Procurement of hand or measuring tools or stainless steel 
          flatware for DOD.

    (a) Stainless steel flatware means special order and stock items of 
stainless steel flatware purchased for DOD, including, but not limited 
to, the following National Stock Numbers (NSN):

7340-00-060-6057
7340-00-205-3340
7340-00-241-8171
7340-00-559-8357
7340-00-205-3341
7340-00-241-8169
7340-00-241-8170
7340-00-688-1055
7340-00-721-6316
7340-00-721-6971

    (b) Purchases of hand or measuring tools or stainless steel flatware 
exceeding the simplified acquisition threshold by DOD must be domestic 
end products. In the case of stainless steel flatware, the Secretary of 
the Department concerned can make an exception. The individual must 
determine that a satisfactory quality and sufficient quantity produced 
in the United States or its possessions are not available when needed at 
domestic market prices.
    (c) If GSA solicitations of hand or measuring tools or stainless 
steel flatware include DOD requirements, GSA will apply the DOD 
restrictions. The bases for applying the DOD restriction to GSA 
acquisitions are:
    (1) DOD's restrictions apply to requisitions of such items from the 
GSA stock program.
    (2) The impracticality of establishing a dual supply system to 
satisfy the requirements of civilian and military agencies.
    (3) GSA may reject any offer when it is considered necessary for 
reasons of national interest.

[65 FR 41379, July 5, 2000]

       Subpart 525.11_Solicitation Provisions and Contract Clauses



Sec. 525.1101  Acquisition of supplies.

    If you include DOD requirements for hand or measuring tools or 
stainless steel flatware in the solicitation for an acquisition 
estimated to exceed the simplified acquisition threshold, insert 
552.225-70, Notice of Procurement Restriction--Hand or Measuring Tools 
or Stainless Steel Flatware, in the solicitation and resulting 
contract(s).

[65 FR 41379, July 5, 2000]

[[Page 203]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 527_PATENTS, DATA, AND COPYRIGHTS

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37221, July 9, 1999, unless otherwise noted.

               Subpart 527.4_Rights in Data and Copyrights



Sec. 527.409  Solicitation provisions and contract clauses.

    Architect-Engineer Services and Construction Contracts Involving 
                       Architect-Engineer Services

    Insert the following in solicitations and contracts for architect-
engineer services and construction contracts involving architect-
engineer services:
    (a) Insert 552.227-70, Government Rights (Unlimited), instead of FAR 
52.227-17, Rights in Data-Special Works, in contracts, except if 
552.227-71 is prescribed.
    (b) If the Government requires sole property rights and exclusive 
control over the design and data, insert 552.227-71, Drawings and Other 
Data to Become Property of Government, instead of FAR 52.227-17.

                      PART 528_BONDS AND INSURANCE

           Subpart 528.2_Sureties and Other Security for Bonds

Sec.

Sec. 528.202 Acceptability of corporate sureties.

                         Subpart 528.3_Insurance


Sec. 528.310 Contract clause for work on a Government installation.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37221, July 9, 1999, unless otherwise noted.

           Subpart 528.2_Sureties and Other Security for Bonds



Sec. 528.202  Acceptability of corporate sureties.

    Corporate surety bonds must be manually signed by the Attorney-in-
Fact or officer of the surety company and the corporate seal affixed. 
You may waive failure of the surety to affix the corporate seal as a 
minor informality. (See B-184120, July 2, 1975, 75-2 CPD 9.)

                         Subpart 528.3_Insurance



Sec. 528.310  Contract clause for work on a Government installation.

    (a) Insert the clause at 552.228-70, Workers' Compensation Laws, in 
each solicitation and contract that meets all the following conditions:
    (1) The contract amount is expected to exceed the simplified 
acquisition threshold.
    (2) The contract will require work to be performed on Government 
property.
    (b) In the case of an owner-controlled insurance program, or wrap-up 
insurance, the clause will be a part of the policy holder's 
requirements.

                             PART 529_TAXES

                     Subpart 529.4_Contract Clauses

Sec.

Sec. 529.401 Domestic contracts.

Sec. 529.401-70 Purchases at or under the simplified acquisition 
          threshold.

Sec. 529.401-71 Contracts for supplies and services usable by the DC 
          Government.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37222, July 9, 1999, unless otherwise noted.

[[Page 204]]

                     Subpart 529.4_Contract Clauses



Sec. 529.401  Domestic contracts.



Sec. 529.401-70  Purchases at or under the simplified acquisition 

threshold.

    Insert 552.229-70, Federal, State, and Local Taxes, in purchases and 
contracts estimated to exceed the micropurchase threshold, but not the 
simplified acquisition threshold.



Sec. 529.401-71  Contracts for supplies and services usable by the DC 

Government.

    Insert 552.229-71, Federal Tax-DC Government, in solicitations and 
contracts that permit the District of Columbia Government to place 
orders.

                       PART 532_CONTRACT FINANCING

          Subpart 532.1_Non-Commercial Item Purchase Financing

Sec.

Sec. 532.111 Contract clauses for non-commercial purchases.

            Subpart 532.2_Commercial Item Purchase Financing


Sec. 532.206 Solicitation provisions and contract clauses.

                     Subpart 532.7_Contract Funding


Sec. 532.705 Contract clauses.

Sec. 532.705-1 Clauses for contracting in advance of funds.

                   Subpart 532.8_Assignment of Claims


Sec. 532.806 Contract clauses.

                      Subpart 532.9_Prompt Payment


Sec. 532.902 Definitions.

Sec. 532-905 Invoice payments.

Sec. 532.905-70 Certification of payment to subcontractors and suppliers 
          under fixed-price construction contracts.

Sec. 532.905-71 Final payment--construction and building service 
          contracts.

Sec. 532.908 Contract clauses.

Subpart 532.70_Authorizing Payment by Governmentwide Commercial Purchase 
                                  Card


Sec. 532.7001 Definition.

Sec. 532.7002 Solicitation requirements.

Sec. 532.7003 Contract clause.

             Subpart 532.71_Payments for Recurring Services


Sec. 532.7101 Definitions.

Sec. 532.7102 Applicability.

Sec. 532.7104 Contract clauses.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37222, July 9, 1999, unless otherwise noted.

          Subpart 532.1_Non-Commercial Item Purchase Financing



Sec. 532.111  Contract clauses for non-commercial purchases.

    (a) Invoice requirements. Insert 552.232-70, Invoice Requirements, 
or something substantially the same, in all solicitations and contracts 
for supplies, services, construction, architect-engineer services, or 
the acquisition of leasehold interests in real property that require the 
submission of invoices for payment. Delete subparagraph (b) of the 
clause if an Accounting Control Transaction (ACT) number is not required 
for payment.
    (b) Adjusting payments. Insert 552.232-71, Adjusting Payments, in 
all solicitations and contracts for recurring building services expected 
to exceed the simplified acquisition threshold.
    (c) Final payment. Insert 552.232-72, Final Payment, in all 
solicitations and contracts for recurring building services expected to 
exceed the simplified acquisition threshold.

            Subpart 532.2_Commercial Item Purchase Financing



Sec. 532.206  Solicitation provisions and contract clauses.

    (a) Discounts for prompt payment. Include 552.232-8, Discounts for 
Prompt Payments, in multiple award schedule solicitations and contracts 
instead of the clause at Federal Acquisition Regulation 52.232-8. Use 
Alternate I in solicitations and contracts for--
    (1) FSS Schedule 70 and the Consolidated Products and Services 
Schedule containing information technology Special Item Numbers (SINs); 
or
    (2) Federal Supply Schedules for recovery purchasing (See 538.7102).
    (b) The contracting officer shall insert the clause at 552.232-81, 
Payments by Non-Federal Ordering Activities, in

[[Page 205]]

solicitations and schedule contracts for--
    (1) FSS Schedule 70 and Consolidated Products and Services Schedule 
contracts containing information technology SINs; or
    (2) Federal Supply Schedules for recovery purchasing (See 538.7102).
    (c) The contracting officer shall insert the provision at 552.232-
82, Contractor's Remittance (Payment) Address, in all Federal Supply 
Schedule solicitations and contracts.
    (d) The contracting officer shall insert the clause at 552.232-83, 
Contractor's Billing Responsibilities, in all Multiple Award Schedule 
solicitations and contracts.

[68 FR 24378, May 7, 2003, as amended at 69 FR 28065, May 18, 2004; 72 
FR 4652, Feb. 1, 2007]

                     Subpart 532.7_Contract Funding



Sec. 532.705  Contract clauses.



Sec. 532.705-1  Clauses for contracting in advance of funds.

    Insert 552.232-73, Availability of Funds, in solicitations and 
contracts for services which are ``severable'' when both of the 
following conditions apply:
    (a) The contract, or a portion of the contract, will be chargeable 
to funds of the new fiscal year.
    (b) The circumstances described in the prescriptions for FAR 52.232-
18 or 52.232-19 do not apply.

                   Subpart 532.8_Assignment of Claims



Sec. 532.806  Contract clauses.

    Insert the clause at 552.232-23, Assignment of Claims, in 
solicitations and requirements or indefinite quantity contracts under 
which more than one agency may place orders.

                      Subpart 532.9_Prompt Payment



Sec. 532.902  Definitions.

    Full cycle electronic commerce means the use of electronic data 
interchange (EDI), Internet-based invoice processing, and electronic 
funds transfer (EFT):
    (a) By the Government, to place purchase, delivery, or task orders, 
receive invoices, and pay invoices.
    (b) By the Contractor, to accept and fill orders, submit invoices, 
and receive payment.



Sec. 532.905  Invoice payments.

    (a) General and architect-engineer contracts. Before exercising the 
authority to modify the date for constructive acceptance or constructive 
approval of progress payments in the clauses listed in this section, you 
must prepare a written justification explaining why a longer period is 
necessary. An official one level above you must approve your 
justification. Determine the time needed on a case-by-case basis.
    (1) In subdivision (a)(6)(i) of the clause at FAR 52.232-25, Prompt 
Payment, do not specify a constructive acceptance period that exceeds 30 
days.
    (2) In subdivision (a)(4)(i)(A) of the clause at FAR 52.232-26, 
Prompt Payment for Fixed-Price Architect-Engineer Contracts, do not 
specify a constructive acceptance period that exceeds 30 days.
    (3) In subdivision (a)(4)(i)(B) of the clause at FAR 52.232-26, 
Prompt Payment for Fixed-Price Architect-Engineer Contracts, do not 
specify a period for constructive approval of progress payments that 
exceeds 7 days.
    (b) Construction contracts. (1) Determine on a case-by-case basis 
the time specified for payment of progress payments in subdivision 
(a)(1)(i)(A) of the clause at FAR 52.232-27, Prompt Payment for 
Construction Contracts. Justify in writing periods longer than 14 days. 
An official one level above you must approve your justification. Under 
no circumstances may more than 30 days be specified.
    (2) Determine the time to be specified in subdivision (a)(4)(i) of 
FAR clause 52.232-27, for constructive acceptance or approval, on a 
case-by-case basis. This time may not exceed 7 days unless you justify a 
longer period in writing, and obtain the approval of an official one 
level above you. Under no circumstances may more than 30 days be 
specified.
    (c) Federal Supply Service. (1) To increase efficiency and reduce 
costs to

[[Page 206]]

the Government, Federal Supply Service contracts under the Stock, 
Special Order, and Schedules Programs may authorize payment within 10 
days of receipt of a proper invoice. The contract must meet all the 
following conditions:
    (i) The contractor agrees to full cycle electronic commerce.
    (ii) The contract includes FAR 52.232-33, Mandatory Information for 
Electronic Funds Transfer Payment.
    (2) The 10 day payment terms apply to each order that meets all the 
following conditions:
    (i) FSS places the order using EDI in accordance with the Trading 
Partner Agreement.
    (ii) The contractor submits EDI invoices in accordance with the 
Trading Partner Agreement or invoices through the GSA Finance Center 
Internet-based invoice process.
    (iii) A GSA Finance Center pays the invoices using EFT.
    (3) The 10 day payment terms do not apply to any order:
    (i) Placed by a GSA contracting activity other than FSS.
    (ii) Placed by or paid by another agency.



Sec. 532.905-70  Certification of payment to subcontractors and 

suppliers under fixed-price construction contracts.

    The contractor may use GSA Form 2419, Certification of Progress 
Payments Under Fixed-Price Construction Contracts, for the certification 
required by FAR 52.232-5.



Sec. 532.905-71  Final payment--construction and building service 

contracts.

    The following procedures apply to construction and building service 
contracts.
    (a) Do not process the final payment on construction or building 
service contracts until the contractor submits a properly executed GSA 
Form 1142, Release of Claims. If, after repeated attempts, you are 
unable to obtain a release of claims from the contractor, you may 
process the final payment with the approval of assigned legal counsel.
    (b) The amount of final payment must include, as appropriate, 
deductions to cover any of the following:
    (1) Liquidated damages for late completion.
    (2) Liquidated damages for labor violations.
    (3) Amounts withheld for improper payment of labor wages.
    (4) The amount of unilateral change orders covering defects and 
omissions.



Sec. 532.908  Contract clauses.

    (a) Federal Supply Service. For FSS Stock, Special Order, and 
Schedules solicitations and contracts that provide payment in 10 days 
under 532.905(c):
    (1) If the contract will include FAR 52.212-4 insert the clause at 
552.232-74, Invoice Payments. GSA received a class deviation to allow 
use of 552.232-74 for commercial items.
    (2) If the contract will not include FAR 52.212-4, insert 552.232-
25, Prompt Payment, instead of FAR 552.232-25.
    (b) Leasehold Interests in Real Property. (1) Insert 552.232-75, 
Prompt Payment, in solicitations and contracts for acquiring leasehold 
interests in real property.
    (i) You may modify the date for constructive acceptance in 
subparagraph (b)(2) of the clause to specify a period longer than 7 
calendar days (but not to exceed 30 days) if necessary because of the 
nature of the services to be received, inspected or accepted by the 
Government. Prepare a written justification for specifying the longer 
period and obtain your contracting director's approval.
    (ii) Use Alternate I if the lease contract does not contain 
provisions for ordering alterations or overtime utility services.
    (2) Insert 552.232-76, Electronic Funds Transfer Payment, in 
solicitations and contracts for acquisition of leasehold interests in 
real property.
    (c) Solicitations, purchase orders, contracts, and leases over the 
micropurchase theshold. Insert 552.232-78, Payment information:
    (1) In all solicitations, purchase orders, and contracts, including 
acquisitions of leasehold interests in real property.
    (2) In task and delivery orders if the contract that the order is 
placed against does not include the clause.

[64 FR 37222, July 9, 1999, as amended at 65 FR 41379, July 5, 2000]

[[Page 207]]

Subpart 532.70_Authorizing Payment by Governmentwide Commercial Purchase 
                                  Card



Sec. 532.7001  Definition.

    Governmentwide commercial purchase card has the same meaning as in 
FAR 13.101.



Sec. 532.7002  Solicitation requirements.

    (a) In solicitations for supplies and services, except FSS schedule 
solicitations, request offerors to indicate if they will accept payment 
by Governmentwide commercial purchase card. Identify the card brand(s) 
under the GSA SmartPay program that may be used to make payments under 
the contract, on the cover page or in Section L of the solicitation.
    (b) For FSS schedule contracts, identify the card brand(s) under the 
GSA SmartPay program that may be used to make payments under the 
contract in the contract award letter.
    (c) For orders placed by GSA, you may authorize payment by 
Governmentwide commercial purchase card only for orders that do not 
exceed $100,000 (see GSA Order, Guidance on Use of the Credit Card for 
Purchases (CFO 4200.1)).
    (d) Consider requesting offerors to designate different levels for 
which they may accept payment by Governmentwide commercial purchase 
card, for example:

    ``If awarded a contract under this solicitation, the offeror agrees 
to accept payment by Governmentwide commercial purchase card for orders 
of:

--$2,500 or less
--$25,000 or less
--$50,000 or less
--$100,000 or less''

[65 FR 11247, Mar. 2, 2000]



Sec. 532.7003  Contract clause.

    (a) Indefinite-delivery, indefinite-quantity (IDIQ) contracts other 
than Federal Supply Service. Insert the clause at 552.232-77, Payment by 
Governmentwide Commercial Purchase Card, in IDIQ solicitations and 
contracts for supplies and services if the contract will provide for 
payment by Governmentwide commercial purchase card as an alternative 
method of payment for orders.
    (b) Federal Supply Schedule contracts. Use Alternate I of the clause 
at 552.232-77 for all FSS schedule solicitations and contracts, except 
for--
    (1) Federal Supply Schedule 70, Information Technology, and the 
Consolidated Products and Services Schedule contracts containing 
information technology Special Item Numbers; or
    (2) Federal Supply Schedule contracts for recovery purchasing (See 
538.7102).
    (c) Federal Supply Schedule contracts for information technology 
Special Item Numbers or Federal Supply Schedules for recovery purchasing 
(See 538.7102). In solicitations and contracts for (1) FSS Schedule 70 
and the Consolidated Products and Services Schedule containing 
information technology Special Item Numbers; or (2) Federal Supply 
Schedule contracts for recovery purchasing (See 538.7102), use 552.232-
79 instead of 552.232-77.

[65 FR 11247, Mar. 2, 2000, as amended at 68 FR 24378, May 7, 2003; 69 
FR 28065, May 18, 2004; 72 FR 4652, Feb. 1, 2007]

             Subpart 532.71_Payments for Recurring Services



Sec. 532.7101  Definitions.

    Fixed roll payment means automatic payment of fixed amounts at 
regular intervals without submission of an invoice or receiving report.



Sec. 532.7102  Applicability.

    You may use fixed roll payments in any contract that meets all four 
of the following conditions:
    (a) The contract provides for recurring services at a constant level 
for a period of at least two months.
    (b) The contract does not contain any discount items.
    (c) Payment is due 30 days following completion of the service 
month.
    (d) For a commercial item acquisition, fixed roll payments are 
consistent with customary commercial practice.



Sec. 532.7104  Contract clauses.

    (a) Noncommercial item acquisitions. For solicitations and contracts 
to be paid by fixed roll payment, include the

[[Page 208]]

clause at 552.232-1, Payments. Do not include the clauses at FAR 52.232-
1, Payments, or 552,232-70, Invoice Requirements.
    (b) Commercial item acquisitions. For solicitations and contracts to 
be paid by fixed roll payment, tailor the clause at FAR 52.212-4 by an 
addendum as noted in paragraphs (b) (1) and (2) of this section. This 
tailoring is authorized by a deviation approved on January 5, 1999.
    (1) Delete paragraph FAR 52.212-4(g), Invoice.
    (2) Add the following to paragraph FAR 52.212-4(i), Payment:

    The Government shall pay the Contractor, without submission of 
invoices or vouchers, 30 days after the service period, the prices 
stipulated in this contract for services rendered and accepted, less any 
deductions provided in this contract.

                PART 533_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 533.1_Protests

Sec.

Sec. 533.103 Protests to the agency.

Sec. 533.103-72 Solicitation provisions.

                   Subpart 533.2_Disputes and Appeals


Sec. 533.211 Contracting officer's decision.

Sec. 533.215 Contract clause.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37224, July 9, 1999, unless otherwise noted.

                         Subpart 533.1_Protests



Sec. 533.103  Protests to the agency.



Sec. 533.103-72  Solicitation provisions.

    Include the provision at 552.233-70, Protests Filed Directly With 
the General Services Administration, in each solicitation for either:
    (a) Supplies, services, construction, or architect-engineer services 
expected to exceed the simplified acquisition threshold.
    (b) Acquisition of leasehold interests in real property expected to 
exceed the simplified lease acquisition threshold.

                   Subpart 533.2_Disputes and Appeals



Sec. 533.211  Contracting officer's decision.

    In addition to the information in FAR 33.211(a)(4)(v), advise the 
contractor in your written decision that a notice of appeal must:
    (a) Describe the nature of the dispute and the relief sought, the 
contract provisions involved, and any other additional information or 
comments relating to the dispute considered important.
    (b) Be signed personally by the appellant (the prime contractor 
making the appeal) or by an officer of the appellant corporation, or 
member of the appellant firm, or by the contractor's duly authorized 
representative or attorney.



Sec. 533.215  Contract clause.

    Insert the clause at 552.233-71, Disputes (Utility Contracts), in 
solicitations and contracts for utility services subject to the 
jurisdiction and regulation of a utility rate commission.

[70 FR 299, Jan. 4, 2005]

[[Page 209]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

         PART 536_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

                          Subpart 536.1_General

Sec.

Sec. 536.101 Applicability.

      Subpart 536.2_Special Aspects of Contracting for Construction


Sec. 536.213 Special procedures for sealed bidding in construction 
          contracting.

Sec. 536.213-3 Invitations for bids.

Sec. 536.213-370 Bids that include alternates.

Sec. 536.213-371 Bids that include options.

Sec. 536.213-372 Bids that include both alternates and options.

Sec. 536.270 Exercise of options.

Sec. 536.271 Project labor agreements.

                     Subpart 536.5_Contract Clauses


Sec. 536.570 Supplemental provisions and clauses.

Sec. 536.570-1 Definitions.

Sec. 536.570-2 Authorities and limitations.

Sec. 536.570-3 Specialist.

Sec. 536.570-4 Basis of award--construction contract.

Sec. 536.570-5 Working hours.

Sec. 536.570-6 Use of premises.

Sec. 536.570-7 Measurements.

Sec. 536.570-8 Specifications and drawings.

Sec. 536.570-9 Shop drawings, coordination drawings, and schedules.

Sec. 536.570-10 Samples.

Sec. 536.570-11 Heat.

Sec. 536.570-12 Use of equipment by the Government.

Sec. 536.570-13 Subcontracts.

Sec. 536.570-14 Requirement for a Project Labor Agreement.

                Subpart 536.6_Architect-Engineer Services


Sec. 536.602 Selection of firms for architect-engineer contracts.

Sec. 536.602-1 Selection criteria.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37224, July 9, 1999, unless otherwise noted.

                          Subpart 536.1_General



Sec. 536.101  Applicability.

    If a requirement in this part is inconsistent with a requirement in 
another GSAR part, this part takes precedence.

      Subpart 536.2_Special Aspects of Contracting for Construction



Sec. 536.213  Special procedures for sealed bidding in construction 

contracting.



Sec. 536.213-3  Invitations for bids.



Sec. 536.213-370  Bids that include alternates.

    (a) The base bid must include all features essential to a sound and 
adequate building design. If it appears that funds available for a 
project may be insufficient to include all desired features in the base 
bid, you may issue a solicitation for a base bid and include one or more 
alternates in the order of priority. Use alternates only if they are 
clearly justified and involve substantial amounts of work in relation to 
the base bid. Their use must be limited and should involve only ``add'' 
alternates.
    (b) Before opening bids that include alternates, determine, and 
record in the contract file, the amount of funds available for the 
project. The amount recorded must be announced at the beginning of the 
bid opening. The amount is the controlling factor in determining the low 
bidder. This amount may be increased later when determining the 
alternate items to award to the low bidder if the following condition is 
met: the award amount of the base bid plus the combination of alternate 
items does not exceed the amount offered for the base bid and the same 
combination of alternate items by any other responsible bidder whose bid 
conforms to the solicitation. This requirement prevents the displacement 
of the low bidder by manipulating the alternates to be used.



Sec. 536.213-371  Bids that include options.

    (a) Subject to the limitations in paragraph (c) of this section, you 
may include options in contracts if it is in the Government's interest.
    (b) the appropriate use of options may include, but is not limited 
to, any of the following:
    (1) If additional work is anticipated but funds are not expected to 
be available at the time of award, and it would

[[Page 210]]

not be practicable to award a separate contract or to permit an 
additional contractor to work on the same site.
    (2) If fixed building equipment, e.g. elevators or escalators, will 
be installed under the construction contract and it is advantageous to 
have the installer of the equipment maintain and service the equipment 
during the warranty period.
    (c) You must not use options under any of the following conditions:
    (1) the prospective option represents known firm requirements for 
which funds are available unless competition for the option quantity is 
impracticable once the initial contract is awarded.
    (2) The contractor will incur undue risks; e.g., the price or 
availability of necessary materials or labor is not reasonably 
foreseeable.
    (d) Solicitations containing option provisions must state the period 
within which the options may be exercised.
    (e) Solicitations must state whether the basis of award is inclusive 
or exclusive of the options. Before issuing a solicitation that includes 
evaluated options, you must determine that there is reasonable certainty 
that funds will be made available to permit exercise of the option.



Sec. 536.213-372  Bids that include both alternates and options.

    (a) Solicitations may include both alternates and options if the 
conditions in 536.213-370, Bids that include alternates, and 536.213-
371, Bids that include options, are satisfied. In these solicitations, 
the low bidder for purposes of award is the responsible bidder offering 
the lowest aggregate price for the base bid and the alternates, in the 
order of priority listed in the solicitation, that provide the most work 
features within the funds available at bid opening, plus all options 
designated to be evaluated.
    (b) The basis of award may require the evaluation of options 
associated with alternates if the related alternate is selected.
    (c) Before opening bids that include both alternates and options, 
determine, and record in the contract file, the amount of funds 
available for the project (i.e., for the base bid and alternate work). 
The amount recorded must be announced at the beginning of the bid 
opening. This amount may be increased later when determining the 
alternate items to be awarded to the low bidder if the following 
condition is met: the award amount of the base bid and evaluated options 
plus the alternate items does not exceed the amount offered for the base 
bid, the evaluated options, and the same combination of alternate items 
by any other responsible bidder whose bid conforms to the solicitation.



Sec. 536.270  Exercise of options.

    (a) If exercising an option, notify the contractor, in writing, 
within the time period specified in the contract.
    (b) Exercise options only after determining that all the following 
conditions exist:
    (1) Funds are available.
    (2) The requirement covered by the option fulfills an existing 
Government need.
    (3) Exercising the option is the most advantageous method of 
satisfying the Government's need, price and other factors considered.
    (c) Before exercising an option, you must determine that the action 
complies with the option's terms and this section's requirements. 
Include your written determination in the contract file.
    (d) The contract modification, or other written document which 
notifies the contractor of the exercise of the option, must cite the 
option clause as authority. If exercising an unpriced or unevaluated 
option, cite the statutory authority permitting the use of other than 
full and open competition (see FAR 6.302 and 517.207).



Sec. 536.271  Project labor agreements.

    (a) Authority. This subpart implements the Presidential memorandum 
of June 5, 1997, on using project labor agreements (PLAs) on Federal 
construction projects. The Presidential memorandum authorizes executive 
departments and agencies to require PLAs on large and significant 
construction projects for facilities to be owned by a Federal department 
or agency.
    (b) Applicability. These policies and procedures apply to all GSA 
activities

[[Page 211]]

authorized to award contracts for construction of facilities to be owned 
by a Federal department or agency. You may use a PLA in leasehold 
arrangement, Federally funded projects, and other appropriate 
circumstances.
    (c) Definitions. Construction means construction, alteration, or 
repair (including dredging, excavating, and painting) of buildings, 
structures, or other real property. The terms buildings, structures, or 
other real property are defined further in Federal Acquisition 
Regulation (FAR) 36.102.
    Labor organization means a labor organization engaged in an industry 
affecting commerce, and any agent of such an organization, and includes 
any organization of any kind, and any agency, or employee representation 
committee, group, association, or plan so engaged in which employees 
participate and which exists for the purpose, in whole or in part, of 
dealing with employers concerning grievances, labor disputes, wages, 
rates of pay, hours, or other terms or conditions of employment, and any 
conference, general committee, joint or system board, or joint council 
so engaged which is subordinate to a national or international labor 
organization (42 U.S.C. 2000e(d)).
    Large and significant project means a Federal construction project 
with a total cost to the Federal Government of more than $5 million.
    Project Labor Agreement (PLA) means an agreement between the 
contractor, subcontractors, and the union(s) representing workers. Under 
a PLA, the contractor and subcontractors on a project and the union(s) 
agree on terms and conditions of employment for the project, 
establishing a framework for labor-management cooperation to advance the 
Government's procurement interest in cost, efficiency, and quality.
    (d) Policy. (1) You may, on a project-by-project basis, use a PLA on 
a large and significant project when both of the following conditions 
apply:
    (i) A PLA will advance the Government's procurement interests.
    (ii) No laws that apply to the specific construction project 
preclude the use of the PLA.
    (2) Do not require any contractor to enter into a PLA with any 
particular labor organization.
    (3) The use of a PLA is not intended to create any right or benefit, 
substantive or procedural enforceable by a nonfederal party against the 
United States, its departments, and agencies, its officers or employees, 
or any other person.
    (e) Procedures. (1) As part of procurement planning for construction 
projects with a total estimated cost to the Federal Government of more 
than $5 million, you may consider requiring a PLA.
    (2) To require a PLA, you must determine whether use of a PLA will 
advance the Government's procurement interests in all the following 
areas:
    (i) Cost, efficiency, and quality.
    (ii) Promoting labor-management stability.
    (iii) Promoting compliance with applicable legal requirements 
governing safety and health, equal employment opportunity, labor and 
employment standards, and other matters.
    (3) In making the determination required by paragraph (b) of this 
section, consult with the agency project or program manager and obtain 
guidance from the Agency Labor Advisor and assigned legal counsel. You 
should consider the following factors:
    (i) Whether past experience with construction projects in the 
location where the project will be performed indicates that a PLA will 
be effective.
    (ii) Whether delays in performance of the construction contract 
would have significant adverse impact on the mission of the agency or 
operation of the installation or facility.
    (iii) Whether any law applies to the specific construction project 
that would impede use of a PLA.
    (iv) Whether the labor organizations in the area can provide a 
reliable source of skilled, experienced building trades workers in all 
crafts needed on the job site for the project's duration (taking into 
consideration other major construction work in the area).
    (v) Whether the Government can benefit from uniform work rules and 
working conditions and established procedures for resolving labor 
disputes, no strike/no lock-out protections.
    (vi) Whether the Government can benefit from increased stability and

[[Page 212]]

labor peace that derives from greater labor-management cooperation.
    (vii) Whether the requirements for a PLA will unreasonably restrict 
competition.
    (viii) Other relevant information.
    (4) Document the rationale supporting your decision to require a PLA 
in the contract file.
    (5) Provide the following information to the Agency Labor Advisor 
(GSA Acquisition Policy Division (MVP)):
    (i) A brief description of the project.
    (ii) The estimated cost.
    (iii) A copy of the document supporting your decision to require a 
PLA.
    (iv) A copy of the solicitation.

                     Subpart 536.5_Contract Clauses



Sec. 536.570  Supplemental provisions and clauses.



Sec. 536.570-1  Definitions.

    Insert 552.236-70, Definitions, in solicitations and contracts if 
construction, dismantling, demolition, or removal of improvements is 
contemplated.



Sec. 536.570-2  Authorities and limitations.

    Insert 552.236-71, Authorities and Limitations, in solicitations and 
contracts if construction, dismantling, demolition, or removal of 
improvements is contemplated and the contract amount is expected to 
exceed the simplified acquisition threshold.



Sec. 536.570-3  Specialist.

    Insert 552.236-72, Specialist, in solicitations and contracts for 
construction if the technical sections of the contract require unusual 
experience or specialized facilities for adequate contract performance.



Sec. 536.570-4  Basis of award--construction contract.

    (a) Insert a provision substantially the same as 552.236-73, Basis 
of Award--Construction Contract, in solicitations for fixed-price 
construction contracts except if any of the following conditions apply:
    (1) The solicitation requires the submission of a lump-sum bid only.
    (2) The solicitation is for an indefinite quantity contract.
    (3) The contract amount is not expected to exceed the simplified 
acquisition threshold.
    (b) Instructions for use.

------------------------------------------------------------------------
     If the solicitation requests the
          submission of a . . .                  Then use the . . .
------------------------------------------------------------------------
(1) Base bid and unit prices.............  Basic provision.
(2) Base bid and options.................  Provision with its Alternate
                                            I.
(3) Base bid and alternates..............  Provision with its Alternate
                                            II.
(4) Base bid, alternates, and options....  Provision with its Alternate
                                            III.
------------------------------------------------------------------------



Sec. 536.570-5  Working hours.

    Insert 552.236-74, Working Hours, in solicitations and contracts if 
construction, dismantling, demolition, or removal of improvements is 
contemplated and the contract amount is expected to exceed the 
simplified acquisition threshold.



Sec. 536.570-6  Use of premises.

    Insert 552.236-75, Use of Premises, in solicitations and contracts 
if construction, dismantling, demolition, or removal of improvements is 
contemplated.



Sec. 536.570-7  Measurements.

    Insert 552.236-76, Measurements, in solicitations and contracts if 
construction, dismantling, demolition, or removal of improvements is 
contemplated.



Sec. 536.570-8  Specifications and drawings.

    Insert the clause at 552.236-77, Specifications and Drawings, in 
solicitations and contracts if construction, dismantling, demolition, or 
removal of improvements is contemplated and the contract amount is 
expected to exceed the simplified acquisition threshold.



Sec. 536.570-9  Shop drawings, coordination drawings, and schedules.

    Insert the clause at 552.236-78, Shop Drawings, Coordination 
Drawings, and Schedules, in solicitations and contracts if construction 
is contemplated and the contract amount is expected to exceed the 
simplified acquisition threshold.



Sec. 536.570-10  Samples.

    Insert the clause at 552.236-79, Samples, in solicitations and 
contracts for construction if the technical sections

[[Page 213]]

of the contract require the submission and approval of samples.



Sec. 536.570-11  Heat.

    Insert the clause at 552.236-80, Heat, in solicitations and 
contracts if construction, dismantling, demolition, or removal of 
improvements is contemplated.



Sec. 536.570-12  Use of equipment by the Government.

    Insert the clause at 552.236-81, Use of Equipment by the Government, 
in contracts requiring heating and air-conditioning of existing 
buildings if it may be necessary for the Government to operate all or 
part of the equipment before final acceptance of the contract.



Sec. 536.570-13  Subcontracts.

    Insert 552.236-82, Subcontracts, in solicitations and contracts for 
construction if the contract amount is expected to exceed the simplified 
acquisition threshold.



Sec. 536.570-14  Requirement for a Project Labor Agreement.

    Insert a clause substantially the same as 552.236-83, Requirement 
for a Project Labor Agreement, in solicitations and contracts that will 
require a project labor agreement.

                Subpart 536.6_Architect-Engineer Services



Sec. 536.602  Selection of firms for architect-engineer contracts.



Sec. 536.602-1  Selection criteria.

    (a) FAR 36.602-1 requires that agencies include ``location in the 
general geographical area of the project and knowledge of locality of 
the project'' as one of several selection criteria.
    (1) Do not use this evaluation factor as a minimum qualification 
requirement for determining whether a firm is eligible to compete for a 
proposed project.
    (2) This factor must not exceed 5 percent of the total weight of all 
evaluation criteria. In order to receive maximum score for this factor, 
the architect-engineer firm(s) must demonstrate that at least 35 percent 
of the architect-engineer contract services (based on the total contract 
price) will be accomplished within the geographical boundaries 
established for the project.
    (3) Under an approved class deviation from FAR 36.602-1(a)(5), this 
factor does not apply to projects that the Chief Architect of GSA 
determines have national significance.
    (b) The public announcement (Commerce Business Daily notice) for a 
proposed project should identify the general geographical area of the 
project by either:
    (1) A radius in miles or other appropriate unit of measure.
    (2) The Standard Metropolitan Statistical Area, county(ies), 
state(s) surrounding the project, or other appropriate geographic 
boundaries.
    (c) Architect-engineer selections under the Design Excellence 
Program must apply the geographical evaluation criteria in the second 
phase.
    (d) The public announcement (Commerce Business Daily notice) must 
provide the number of calendar days the architect-engineer of record has 
to establish a production capability within the general geographical 
area of the project. You may allow the architect-engineer of record up 
to 45 calendar days after contract award to establish this production 
capability.

[65 FR 11247, Mar. 2, 2000]

                      PART 537_SERVICE CONTRACTING

                 Subpart 537.1_Service Contracts_General

Sec.

Sec. 537.101 Definitions.

Sec. 537.110 Solicitation provisions and contract clauses.

             Subpart 537.2_Advisory and Assistance Services


Sec. 537.270 Contract clause.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37226, July 9, 1999, unless otherwise noted.

                 Subpart 537.1_Service Contracts_General



Sec. 537.101  Definitions.

    Contracts for building services means contracts for services 
relating to the

[[Page 214]]

operation and maintenance of a building (for example, janitorial; window 
washing; snow removal; trash removal; lawn and grounds care; inspection, 
maintenance and repair of fixed equipment (e.g., elevators, air-
conditioning, hearing systems)) and protection or guard service.



Sec. 537.110  Solicitation provisions and contract clauses.

    The following provision and clauses apply to contracts for building 
services:
    (a) If the contract is expected to exceed the simplified acquisition 
threshold and it is not initiated under the Javits-Wagner-O'Day Act:
    (1) Insert 552.237-70, Qualifications of Offerors, in the 
solicitation.
    (2) Insert 552.237-71, Qualifications of Employees, in the 
solicitation and contract. If needed, use supplemental provisions or 
clauses to describe specific requirements for employees performing work 
on the contract.
    (b) Insert 552.237-72, Prohibition Regaring ``Quasi-Military Armed 
Forces,'' in solicitations and contracts for guard service.

[65 FR 41379, July 5, 2000]

             Subpart 537.2_Advisory and Assistance Services



Sec. 537.270  Contract clause.

    Insert the clause at 552.237-73, Restriction on Disclosure of 
Information, in solicitations and contracts for proposal evaluation and 
analysis services.

              PART 538_FEDERAL SUPPLY SCHEDULE CONTRACTING

  Subpart 538.2_Establishing and Administering Federal Supply Schedules

Sec.

Sec. 538.270 Evaluation of multiple award schedule (MAS) offers.

Sec. 538.271 MAS contract awards.

Sec. 538.272 MAS price reductions.

Sec. 538.273 Contract clauses.

                  Subpart 538.70_Cooperative Purchasing


Sec. 538.7000 Scope of subpart.

Sec. 538.7001 Definitions.

Sec. 538.7002 General.

Sec. 538.7003 Policy.

Sec. 538.7004 Solicitation provisions and contract clauses.

                   Subpart 538.71_Recovery Purchasing


Sec. 538.7100 Scope of subpart.

Sec. 538.7101 Definitions.

Sec. 538.7102 General.

Sec. 538.7103 Policy.

Sec. 538.7104 Solicitation provisions and contract clauses.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37227, July 9, 1999, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 538 appear at 69 FR 
28065, May 18, 2004.

  Subpart 538.2_Establishing and Administering Federal Supply Schedules



Sec. 538.270  Evaluation of multiple award schedule (MAS) offers.

    (a) The Government will seek to obtain the offeror's best price (the 
best price given to the most favored customer). However, the Government 
recognizes that the terms and conditions of commercial sales vary and 
there may be legitimate reasons why the best price is not achieved.
    (b) Establish negotiation objectives based on a review of relevant 
data and determine price reasonableness.
    (c) When establishing negotiation objectives and determining price 
reasonableness, compare the terms and conditions of the MAS solicitation 
with the terms and conditions of agreements with the offeror's 
commercial customers. When determining the Government's price 
negotiation objectives, consider the following factors:
    (1) Aggregate volume of anticipated purchases.
    (2) The purchase of a minimum quantity or a pattern of historic 
purchases.
    (3) Prices taking into consideration any combination of discounts 
and concessions offered to commercial customers.
    (4) Length of the contract period.
    (5) Warranties, training, and/or maintenance included in the 
purchase price or provided at additional cost to the product prices.
    (6) Ordering and delivery practices.
    (7) Any other relevant information, including differences between 
the MAS solicitation and commercial terms and

[[Page 215]]

conditions that may warrant differentials between the offer and the 
discounts offered to the most favored commercial customer(s). For 
example, an offeror may incur more expense selling to the Government 
than to the customer who receives the offeror's best price, or the 
customer (e.g., dealer, distributor, original equipment manufacturer, 
other reseller) who receives the best price may perform certain value-
added functions for the offeror that the Government does not perform. In 
such cases, some reduction in the discount given to the Government may 
be appropriate. If the best price is not offered to the Government, you 
should ask the offeror to identify and explain the reason for any 
differences. Do not require offerors to provide detailed cost 
breakdowns.
    (d) You may award a contract containing pricing which is less 
favorable than the best price the offeror extends to any commercial 
customer for similar purchases if you make a determination that both of 
the following conditions exist:
    (1) The prices offered to the Government are fair and reasonable, 
even though comparable discounts were not negotiated.
    (2) Award is otherwise in the best interest of the Government.



Sec. 538.271  MAS contract awards.

    (a) MAS awards will be for commercial items as defined in FAR 2.101. 
Negotiate contracts as a discount from established catalog prices.
    (b) Before awarding any MAS contract, determine that the offered 
prices are fair and reasonable (see FAR subpart 15.4 and 538.270). 
Document the negotiation and your determination using FAR 15.406-3 as 
guidance.
    (c) State clearly in the award document the price/discount 
relationship between the Government and the identified commercial 
customer (or category of customers) on which the award is predicated.



Sec. 538.272  MAS price reductions.

    (a) Section 552.238-75, Price Reductions, requires the contractor to 
maintain during the contract period the negotiated price/discount 
relationship (and/or term and condition relationship) between the 
eligible ordering activities and the offeror's customer or category of 
customers on which the contract award was predicated (see 538.271(c)). 
If a change occurs in the contractor's commercial pricing or discount 
arrangement applicable to the identified commercial customer (or 
category of customers) that results in a less advantageous relationship 
between the eligible ordering activities and this customer or category 
of customers, the change constitutes a ``price reduction.''
    (b) Make sure that the contractor understands the requirements of 
section 552.238-75 and agrees to report to you all price reductions as 
provided for in the clause.

[64 FR 37227, July 9, 1999, as amended at 68 FR 24378, May 7, 2003]



Sec. 538.273  Contract clauses.

    (a) Multiple award schedules. Insert in solicitations and contracts:
    (1) 552.238-70, Identification of Electronic Office Equipment 
Providing Accessibility for the Handicapped, if you include electronic 
office equipment items.
    (2) 552.238-71, Submission and Distribution of Authorized FSS 
Schedule Pricelists. In solicitations and contracts for:
    (i) FSS Schedule 70 and the Consolidated Products and Services 
Schedule contracts containing information technology Special Item 
Numbers; or
    (ii) Federal Supply Schedule contracts for recovery purchasing (See 
538.7102), use Alternate I. If GSA is not prepared to accept electronic 
submissions for a particular schedule delete--
    (A) The paragraph identifier ``(i)'' in (b)(1) and the word ``and'' 
at the end of paragraph (b)(1)(i); and
    (B) Paragraphs (b)(1)(ii) and (b)(3).
    (3) 552.238-72, Identification of Products That Have Environmental 
Attributes.
    (4) 552.238-73, Cancellation.
    (b) Multiple and single award schedules. Insert in solicitations and 
contracts:
    (1) 552.238-74, Industrial Funding Fee and Sales Reportings.
    (2) 552.238-75, Price Reductions. Use Alternate I in solicitations 
and contracts for--

[[Page 216]]

    (i) FSS Schedule 70 and the Consolidated Products and Services 
Schedule contracts containing information technology Special Item 
Numbers; or
    (ii) Federal Supply Schedule contracts for recovery purchasing (See 
538.7102).

[64 FR 37227, July 9, 1999, as amended at 68 FR 24378, May 7, 2003; 68 
FR 41288, July 11, 2003; 68 FR 52128, Sept. 2, 2003; 72 FR 4652, Feb. 1, 
2007]

                  Subpart 538.70_Cooperative Purchasing

    Source: 68 FR 24378, May 7, 2003, unless otherwise noted.



Sec. 538.7000  Scope of subpart.

    This subpart prescribes policies and procedures that implement 
statutory provisions authorizing non-federal organizations to use 
Schedule 70 and Consolidated Products and Services Schedule contracts 
containing information technology Special Item Numbers (SINs).



Sec. 538.7001  Definitions.

    Ordering activity (also called ``ordering agency'' and ``ordering 
office'') means an eligible ordering activity (see 552.238-78) 
authorized to place orders under Federal supply schedule contracts.
    Schedule 70, as used in this subpart, means Schedule 70 information 
technology contracts, and Consolidated Products and Services Schedule 
contracts containing information technology SINs. The Consolidated 
Products and Services Schedule is a compilation of multiple individual 
Federal Supply Schedules; therefore, only the SINs that fall under 
Schedule 70 of the Consolidated Products and Services Schedule will 
apply to Cooperative Purchasing. No other Schedules, or SINs, containing 
information technology outside of Schedule 70 SINs, and Consolidated 
Products and Services Schedule contracts containing Schedule 70 SINs, 
will apply.
    State and local government entities, as used in this subpart, means 
the states of the United States, counties, municipalities, cities, 
towns, townships, tribal governments, public authorities (including 
public or Indian housing agencies under the United States Housing Act of 
1937), school districts, colleges and other institutions of higher 
education, council of governments (incorporated or not), regional or 
interstate government entities, or any agency or instrumentality of the 
preceding entities (including any local educational agency or 
institution of higher education), and including legislative and judicial 
departments. The term does not include contractors of, or grantees of, 
State or local governments.
    (1) Local educational agency has the meaning given that term in 
section 8013 of the Elementary and Secondary Education Act of 1965 (20 
U.S.C. 7713).
    (2) Institution of higher education has the meaning given that term 
in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 
1001(a)).
    (3) Tribal government means--
    (i) The governing body of any Indian tribe, band, nation, or other 
organized group or community located in the continental United States 
(excluding the State of Alaska) that is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians; and
    (ii) Any Alaska Native regional or village corporation established 
pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et 
seq.).



Sec. 538.7002  General.

    (a) 40 U.S.C. 501, (the Act) authorizes the Administrator of General 
Services to procure and supply personal property and nonpersonal 
services for the use of Executive agencies. Under 40 U.S.C. 502, the 
goods and services available to executive agencies are also available to 
mixed ownership Government corporations, establishments within the 
legislative or judicial branches of Government (excepting the Senate, 
House of Representatives, Architect of the Capitol, and any activities 
under the direction of the Architect of the Capitol), the District of 
Columbia, and Qualified Non-profit Agencies.
    (b) Section 211 of the E-Government Act of 2002 amends 40 U.S.C. 502 
to authorize the Administrator of General Services to provide for use of 
certain

[[Page 217]]

Federal supply schedules of the GSA by a State or local government, 
which includes any State, local, regional, or tribal government, or any 
instrumentality thereof (including any local educational agency or 
institution of higher education).
    (c) State and local governments are authorized to procure only from 
the information technology Federal Supply Schedule (Schedule 70) 
contracts and Consolidated Products and Services Schedule contracts 
containing information technology SINs. A listing of the participating 
contractors and SINs for the products and services that are available 
through Schedule 70 and Consolidated Products and Services Schedule 
contracts containing information technology SINs, is available in GSA's 
Schedules e-Library at web site http://fss.gsa.gov/elibrary. Click on 
Schedules e-Library and then click on the ICON labeled Cooperative 
Purchasing, State and Local. The contractors and the products and 
services available for cooperative purchasing will be labeled with the 
ICON.



Sec. 538.7003  Policy.

    Preparing solicitations when schedules are open to eligible non-
federal entities. When opening Schedule 70 and the Consolidated Products 
and Services Schedule containing information technology SINs, for use by 
eligible non-federal entities, the contracting officer must make minor 
modifications to certain Federal Acquisition Regulation and GSAM 
provisions and clauses in order to make clear distinctions between the 
rights and responsibilities of the U.S. Government in its management and 
regulatory capacity pursuant to which it awards schedule contracts and 
fulfills associated Federal requirements versus the rights and 
responsibilities of eligible ordering activities placing orders to 
fulfill agency needs. Accordingly, the contracting officer is authorized 
to modify the following FAR provisions/clauses to delete ``Government'' 
or similar language referring to the U.S. Government and substitute 
``ordering activity'' or similar language when preparing solicitations 
and contracts to be awarded under Schedule 70 and the Consolidated 
Products and Services Schedule containing information technology SINs. 
When such changes are made, the word ``(DEVIATION)'' shall be added at 
the end of the title of the provision or clause. These clauses include 
but are not limited to:
    (a) 52.212-4, Contract Terms and Conditions--Commercial Items.
    (b) 52.216-18, Ordering.
    (c) 52.216-19, Order Limitations.
    (d) 52.229-1, State and Local Taxes.
    (e) 52.229-3, Federal, State, and Local Taxes.
    (f) 52.232-7, Payments Under Time-and-Materials and Labor-Hour 
Contracts.
    (g) 52.232-17, Interest.
    (h) 52.232-19, Availability of Funds for the Next Fiscal Year.
    (i) 52.232-34, Payment by Electronic Funds Transfer--Other than 
Central Contractor Registration
    (j) 52.232-36, Payment by Third Party.
    (k) 52.237-3, Continuity of Services.
    (l) 52.246-4, Inspection of Services-Fixed Price.
    (m) 52.246-6, Inspection-Time-and-Material and Labor-Hour.
    (n) 52.247-34, F.O.B. Destination.
    (o) 52.247-38, F.O.B. Inland Carrier Point of Exportation.



Sec. 538.7004  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the clause at 552.238-77, 
Definition (Federal Supply Schedules), in solicitations and schedule 
contracts for Schedule 70 and the Consolidated Products and Services 
Schedule contracts containing information technology SINs.
    (b) The contracting officer shall insert the clause at 552.238-78, 
Scope of Contract (Eligible Ordering Activities), in solicitations and 
contracts for Schedule 70 and the Consolidated Products and Services 
Schedule contracts containing information technology SINs.
    (c) The contracting officer shall insert the clause at 552.238-79, 
Use of Federal Supply Schedule Contracts by Certain Entities--
Cooperative Purchasing, in solicitations and Schedule 70 contracts and 
the Consolidated Products and Services Schedule contracts containing 
information technology SINs.
    (d) See 552.107-70 for authorized FAR deviations.

[[Page 218]]

                   Subpart 538.71_Recovery Purchasing

    Source: 72 FR 4653, Feb. 1, 2007, unless otherwise noted.



Sec. 538.7100  Scope of subpart.

    This subpart prescribes policies and procedures to implement the 
John Warner National Defense Authorization Act for Fiscal Year 2007 
(Pub. L. 109-364) authorizing non-federal organizations to use Federal 
Supply Schedule contracts to purchase products and services to be used 
for recovery from major disasters, terrorism or nuclear, biological, 
chemical, or radiological attack.



Sec. 538.7101  Definitions.

    The definitions in subsection 538.7001 shall apply for purposes of 
this subpart.



Sec. 538.7102  General.

    (a) Section 833 of the John Warner National Defense Authorization 
Act for Fiscal Year 2007 (Pub. L. 109-364) amends 40 U.S.C. 502 to 
authorize the Administrator of General Services to provide to State and 
local governments the use of Federal Supply Schedules of the GSA for 
purchase of products and services to be used to facilitate recovery from 
a major disaster declared by the President under the Robert T. Stafford 
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.) or 
to facilitate recovery from terrorism or nuclear, biological, chemical, 
or radiological attack. Section 833 requires the Secretary of Homeland 
Security to determine which products and services qualify before the 
Administrator provides for the use of the Federal Supply Schedules. Use 
of Federal supply schedules by State and local governments is voluntary. 
Agreement of a schedule contractor to offer recovery purchasing under 
the contract and acceptance of any order for recovery purchasing from a 
State or local government is voluntary.
    (b) State and local governments are authorized to use Federal Supply 
Schedules to procure products and services determined by the Secretary 
of Homeland Security to be used to facilitate recovery from major 
disasters, terrorism, or nuclear, biological, chemical, or radiological 
attack. A listing of the Federal Supply Schedules for the products and 
services is available in GSA's Schedules e-Library at Web site http://
www.gsaelibrary.gsa.gov. Click on the link, ``Disaster Recovery 
Purchasing, State and Local.'' The participating contractors and the 
products and services available for recovery purchasing will be labeled 
with the Disaster Recovery Purchasing ICON.
    (c) State and local governments that wish to use the Federal Supply 
Schedules to facilitate recovery from major disasters or attacks are 
responsible for ensuring that only authorized representatives of their 
governments place orders against these schedules and that procured 
products and services are used only for the purposes authorized by 
Section 833 of Public Law 109-364.



Sec. 538.7103  Policy.

    Preparing solicitations when schedules are open to eligible non-
federal entities. When opening the Federal Supply Schedules for products 
and services determined by the Secretary of Homeland Security, for use 
by eligible non-federal entities, the contracting officer must make 
minor modifications to certain Federal Acquisition Regulation (FAR) and 
GSAM provisions and clauses in order to make clear distinctions between 
the rights and responsibilities of the U.S. Government in its management 
and regulatory capacity pursuant to which it awards schedule contracts 
and fulfills associated Federal requirements versus the rights and 
responsibilities of eligible ordering activities placing orders to 
fulfill agency needs. Accordingly, the contracting officer is authorized 
to modify the following FAR provisions/clauses to delete ``Government'' 
or similar language referring to the U.S. Government and substitute 
``ordering activity'' or similar language when preparing solicitations 
and contracts to be awarded under the Federal Supply Schedules for 
products and services determined by the Secretary of Homeland Security. 
When such changes are made, the word ``(DEVIATION)'' shall be added at 
the end of the title of the provision or clause. These clauses include 
but are not limited to--

[[Page 219]]

    (a) 52.212-4, Contract Terms and Conditions--Commercial Items.
    (b) 52.216-18, Ordering.
    (c) 52.216-19, Order Limitations.
    (d) 52.229-1, State and Local Taxes.
    (e) 52.229-3, Federal, State, and Local Taxes.
    (f) 52.232-7, Payments Under Time-and-Materials and Labor-Hour 
Contracts.
    (g) 52.232-17, Interest.
    (h) 52.232-19, Availability of Funds for the Next Fiscal Year.
    (i) 52.232-34, Payment by Electronic Funds Transfer--Other than 
Central Contractor Registration.
    (j) 52.232-36, Payment by Third Party.
    (k) 52.237-3, Continuity of Services.
    (l) 52.246-4, Inspection of Services-Fixed Price.
    (m) 52.246-6, Inspection-Time-and-Material and Labor-Hour.
    (n) 52.247-34, F.O.B. Destination.
    (o) 52.247-38, F.O.B. Inland Carrier Point of Exportation.



Sec. 538.7104  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the clause at 552.238-76, 
Definition (Federal Supply Schedules)--Recovery Purchasing, in Federal 
Supply Schedule solicitations and contracts which contain products and 
services determined by the Secretary of Homeland Security to facilitate 
recovery from major disasters, terrorism, or nuclear, biological, 
chemical, or radiological attack.
    (b) The contracting officer shall insert the clause at 552.238-78, 
Scope of Contract (Eligible Ordering Activities), with Alternate I in 
Federal Supply Schedule solicitations and contracts which contain 
products and services determined by the Secretary of Homeland Security 
to facilitate recovery from major disasters, terrorism, or nuclear, 
biological, chemical, or radiological attack.
    (c) The contracting officer shall insert the clause at 552.238-80, 
Use of Federal Supply Schedule Contracts by Certain Entities--Recovery 
Purchasing, in Federal Supply Schedule solicitations and contracts which 
contain products and services determined by the Secretary of Homeland 
Security that facilitate recovery from major disasters, terrorism, or 
nuclear, biological, chemical, or radiological attack.
    (d) See 552.101-70 for authorized Federal Acquisition Regulation 
deviations.

[[Page 220]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

           PART 542_CONTRACT ADMINISTRATION AND AUDIT SERVICES

          Subpart 542.11_Production Surveillance and Reporting

Sec.

Sec. 542.1107 Contract clause.

            Subpart 542.15_Contractor Performance Information


Sec. 542.1503 Procedures.

Sec. 542.1503-71 Information to collect.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37228, July 9, 1999, unless otherwise noted.

          Subpart 542.11_Production Surveillance and Reporting



Sec. 542.1107  Contract clause.

                   FSS Stock or Special Order Program

    Insert 552.242-70, Status Report of Orders and Shipments, in 
solicitations and indefinite quantity and requirements contracts for 
stock or special order program items. You also may use the clause in 
indefinite delivery definite quantity contracts for stock or special 
order program items when close monitoring is necessary because numerous 
shipments are involved.

            Subpart 542.15_Contractor Performance Information



Sec. 542.1503  Procedures.



Sec. 542.1503-71  Information to collect.

    The system for collecting contractor performance data should 
include, as appropriate:
    (a) Timeliness of delivery or performance, for example:
    (1) Adherence to contract delivery schedules.
    (2) Resolution of delays
    (3) Number of ``show cause'' letters and ``cure notices'' issued.
    (4) Number of delinquent deliveries.
    (5) Number of contract extensions resulting from contractor-caused 
delays.
    (6) Timely submission or performance or required tests.
    (b) Conformance of product or service to contract requirements, for 
example:
    (1) Quality of workmanship.
    (2) Reliability.
    (3) Adequacy of correction of defects.
    (4) Number of safety defects.
    (5) Number of product rejections.
    (6) Results of laboratory tests.
    (7) Number and extent of warranty problems.
    (c) Customer comments, for example:
    (1) Number and quality of positive comments.
    (2) Number and nature of complaints.
    (3) Adequacy of resolving customer complaints.
    (d) Terminations for default.
    (e) On-the-job safety performance record, including the number of 
lost or restricted workdays due to occupational injuries in comparison 
to the national average.
    (f) Adequacy of contractor's quality assurance system.
    (g) Compliance with other key contract provisions, for example:
    (1) Subcontracting program.
    (2) Labor standards.
    (3) Safety standards.
    (4) Reporting requirements.
    (h) Exhibiting customer-oriented behavior.
    (i) Other performance elements identified by the Service.

                     PART 543_CONTRACT MODIFICATIONS

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37228, July 9, 1999, unless otherwise noted.

                       Subpart 543.2_Change Orders



Sec. 543.205  Contract clauses.

    (a) Construction. (1) Insert 552.243-70, Pricing of Adjustments, in 
solicitations and contracts if the contract:
    (i) Amount is expected to exceed the simplified acquisition 
threshold.
    (ii) Will be other than a cost type.
    (2) Insert 552.243-71, Equitable Adjustments, in solicitations and 
contracts containing FAR 52.243-4.

[[Page 221]]

    (b) Multiple award schedules (MAS). Insert 552.243-72, Modifications 
(Multiple Award Schedule), in MAS solicitations and contracts issued by 
GSA. For solicitations and contracts issued under Federal Supply 
Classification (FSC) 65 you may use the clause with its Alternate I for 
products ordered from authorized Prime Vendors.

                       PART 546_QUALITY ASSURANCE

                     Subpart 546.3_Contract Clauses

Sec.

Sec. 546.302 Fixed-price supply contracts.

Sec. 546.302-70 Source inspection by Quality Approved Manufacturer.

Sec. 546.302-71 Source inspection.

Sec. 546.312 Construction contracts.

           Subpart 546.4_Government Contract Quality Assurance


Sec. 546.470-2 Certification testing.

                        Subpart 546.7_Warranties


Sec. 546.708 Warranties of data.

Sec. 546.710 Contract clauses.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37228, July 9, 1999, unless otherwise noted.

                     Subpart 546.3_Contract Clauses



Sec. 546.302  Fixed-price supply contracts.



Sec. 546.302-70  Source inspection by Quality Approved Manufacturer.

    For contracts and solicitations issued by FSS:
    (a) Insert the clause at 552.246-70, Source Inspection by Quality 
Approved Manufacturer, in solicitations and contracts that provide for 
source inspection, except:
    (1) Multiple award schedule contracts.
    (2) Motor vehicle contracts.
    (3) Contracts awarded by the FSS Services Acquisition Center, unless 
you decide, together with the Central Office Quality Assurance Division 
(FQA), that inspection by Government personnel is necessary.
    (b) You may authorize inspection and testing at manufacturing plants 
or other facilities located outside the United States, Puerto Rico, or 
the Virgin Islands, under paragraph (a)(1) of the clause at 552.246-70 
under any of the circumstances listed in this paragraph. Coordinate the 
authorization with FQA and document it in the file.
    (1) Inspection services are available from another Federal agency 
with primary inspection responsibility in the geographic area.
    (2) An inspection interchange agreement exists with another agency 
for inspection at a contractor's plant.
    (3) The procurement is for the Agency for International Development 
and specifies the area of source.
    (4) Other considerations will ensure more economical and effective 
inspection consistent with the Government's interest.



Sec. 546.302-71  Source inspection.

    For solicitations and contracts issued by FSS, if Government 
personnel at the source will perform inspection, insert 552.246-71, 
Source Inspection by Government.



Sec. 546.312  Construction contracts.

    Insert the clause at 552.246-72, Final Inspection and Tests, in 
solicitations and contracts for construction that include FAR 52.246-12, 
Inspection of Construction.

           Subpart 546.4_Government Contract Quality Assurance



Sec. 546.470-2  Certification testing.

    Certification testing determines whether an item conforms with a 
specification for the purpose of executing a certificate of compliance 
required by the specification. The contractor has responsibility for 
certification testing.

                        Subpart 546.7_Warranties



Sec. 546.708  Warranties of data.

    (a) Use warranties of data only when you meet both of the following 
conditions:
    (1) You decide the use of a warranty is in the Government's 
interest.
    (2) The contracting director concurs in your decision.
    (b) The technical or specification manager has responsibility for 
developing any warranties of data.

[[Page 222]]



Sec. 546.710  Contract clauses.

    (a) Insert the clause at 552.246-17, Warranty of Supplies of a 
Noncomplex Nature, instead of FAR 52.246-17 in solicitations and 
contracts. Use the following alternates as applicable:
    (1) Commercial item acquisitions other than multiple award 
schedules. Use the clause at 552.246-17 with its Alternate I.
    (2) Other than commercial items in Class 8010. Use the clause at 
552.246-17 with its Alternate II.
    (3) Other than commercial items in Class 8030 or 8040. Use the 
clause at 552.246-17 with its Alternate III. In addition, specify in the 
solicitation whether the items are ``noncritical end use items'' or 
``critical end use items''.
    (b) Multiple award schedules. Insert the clause at 552.246-73, 
Warranty--Multiple Award Schedule, in solicitations and contracts. Use 
Alternate I in solicitations and contracts for--
    (1) FSS Schedule 70 and the Consolidated Products and Services 
Schedule containing information technology Special Item Numbers; or
    (2) Federal Supply Schedules for recovery purchasing (See 538.7102).
    (c) Construction contracts expected to exceed the simplified 
acquisition threshold. Insert the clause at 552.246-75, Guarantees, in 
solicitations and contracts.
    (d) Pesticides. Insert the clause at 552.246-76, Warranty of 
Pesticides, in solicitations and contracts involving the procurement of 
pesticides.

[64 FR 37228, July 9, 1999, as amended at 65 FR 11248, Mar. 2, 2000; 68 
FR 24379, May 7, 2003; 69 FR 28065, May 18, 2004; 72 FR 4654, Feb. 1, 
2007]

                         PART 547_TRANSPORTATION

            Subpart 547.3_Transportation in Supply Contracts

Sec.

Sec. 547.300 Scope of subpart.

Sec. 547.303 Standard delivery terms and contract clauses.

Sec. 547.303-1 F.o.b origin.

Sec. 547.304 Determination of delivery terms.

Sec. 547.304-5 Exceptions.

Sec. 547.305 Solicitation provisions, contract clauses, and 
          transportation factors.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37229, July 9, 1999, unless otherwise noted.

            Subpart 547.3_Transportation in Supply Contracts



Sec. 547.300  Scope of subpart.

    This subpart applies to FSS acquisitions.



Sec. 547.303  Standard delivery terms and contract clauses.



Sec. 547.303-1  F.o.b origin.

                       Contractor Responsibilities

    The contractor must both:
    (a) Request a carrier routing from the applicable transportation 
zone office on all shipments weighing 10,000 pounds or more.
    (b) Mail the original of the commercial bill of lading (CBL), to the 
office that authorized the CBL (applies to shipment on a CBL). Ensure 
that the signature of the carrier's agent and the annotation required by 
FAR 52.247-1 appear on the original and all copies of the CBL.



Sec. 547.304  Determination of delivery terms.



Sec. 547.304-5  Exceptions.

    (a) Solicitations that provide for delivery to Alaska, Hawaii, or 
Puerto Rico. Include notice that the offeror may specify delivery f.o.b. 
origin; f.o.b. vessel, part of shipment; f.o.b. destination; or any 
combination of these. If appropriate, provide for other delivery terms.
    (b) Federal Supply Schedules. If f.o.b. destination is offered for 
delivery within CONUS, attempt to obtain the same delivery term for 
shipment to Alaska, Hawaii, or Puerto Rico.



Sec. 547.305  Solicitation provisions, contract clauses, and 

transportation factors.

    (a) Insert 552.247-70, Placarding Railcar Shipments, in 
solicitations and contracts if it is essential that the railcar doors be 
especially positioned next to the unloading dock, platform, or warehouse 
door.
    (b) Insert 552.247-71, Diversion of Shipment Under f.o.b. 
Destination Contracts, in Stock, Special Order Program (SOP), and Single 
Award Schedule solicitations and contracts which provide for f.o.b. 
destination shipment.

[[Page 223]]

                    PART 549_TERMINATION OF CONTRACTS

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37229, July 9, 1999, unless otherwise noted.

               Subpart 549.5_Contract Termination Clauses



Sec. 549.502  Termination for convenience of the Government.

    Acquisitions Funded Through the Information Technology (IT) Fund

    (a) You may use the clause at 552.249-70, Termination for 
Convenience of the Government (Fixed-Price) (Short Form), when 
appropriate, in solicitations and contracts for the acquisition and 
maintenance of telephone systems funded through the Information 
Technology (IT) Fund. Use this clause with FAR 52.249-1 or FAR 52.249-3 
and 52.249-4.
    (b) If you use the clause at 552.249-70, you must also insert 
552.249-71, Submission of Termination Liability Schedule, in the 
solicitation and contract.

[[Page 224]]

                     SUBCHAPTER H_CLAUSES AND FORMS

          PART 552_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Sec.

Sec. 552.000 Scope of part.

       Subpart 552.1_Instructions for Using Provisions and Clauses


Sec. 552.101-70 Using part 552.

Sec. 552.102 Incorporating provisions and clauses.

Sec. 552.103 Identification of provisions and clauses.

Sec. 552.104 Procedures for modifying and completing provisions and 
          clauses.

Sec. 552.105 Procedures for using alternates.

Sec. 552.107-70 Provisions and clauses prescribed in subpart 552.1.

              Subpart 552.2_Text of Provisions and Clauses


Sec. 552.200 Scope of subpart.

Sec. 552.203-5 Covenant Against Contingent Fees.

Sec. 552.203-70 Price Adjustment for Illegal or Improper Activity.

Sec. 552.203-71 Restriction on Advertising.

Sec. 552.209-70 Product Removal from Qualified Products List.

Sec. 552.209-71 Waiver of First Article Testing and Approval 
          Requirement.

Sec. 552.209-72 Supplemental Requirements for First Article Approval--
          Contractor Testing.

Sec. 552.209-73 Supplemental Requirements for First Article Approval--
          Government Testing.

Sec. 552.211-8 Time of Delivery.

Sec. 552.211-15 Defense Priorities and Allocations System Requirements.

Sec. 552.211-70 [Reserved]

Sec. 552.211-71 Standard References.

Sec. 552.211-72 Reference to Specifications in Drawings.

Sec. 552.211-73 Marking.

Sec. 552.211-74 Charges for Marking.

Sec. 552.211-75 Preservation, Packaging and Packing.

Sec. 552.211-76 Charges for Packaging and Packing.

Sec. 552.211-77 Packing List.

Sec. 552.211-78 Commercial Delivery Schedule (Multiple Award Schedule).

Sec. 552.211-79 Acceptable Age of Supplies.

Sec. 552.211-80 Age on Delivery.

Sec. 552.211-81 Time of Shipment.

Sec. 552.211-82 Notice of Shipment.

Sec. 552.211-83 Availability for Inspection, Testing, and Shipment/
          Delivery.

Sec. 552.211-84 Non-Compliance With Contract Requirements.

Sec. 552.212-70 Preparation of Offer (Multiple Award Schedule).

Sec. 552.212-71 Contract Terms and Conditions Applicable to GSA 
          Acquisition of Commercial Items.

Sec. 552.212-72 Contract Terms and Conditions Required To Implement 
          Statutes or Executive Orders Applicable to GSA Acquisition of 
          Commercial Items.

Sec. 552.212-73 Evaluation--Commerical Items (Multiple Award Schedule).

Sec. 552.214-70 ``All or None'' Offers.

Sec. 552.214-71 Progressive Awards and Monthly Quantity Allocations.

Sec. 552.214-72 Bid Sample Requirements.

Sec. 552.215-70 Examination of Records by GSA.

Sec. 552.215-71 Examination of Records by GSA (Multiple Award Schedule).

Sec. 552.215-72 Price Adjustment--Failure To Provide Accurate 
          Information.

Sec. 552.216-70 Economic Price Adjustment--FSS Multiple Award Schedule 
          Contracts.

Sec. 552.216-71 Economic Price Adjustment--Stock and Special Order 
          Program Contracts.

Sec. 552.216-72 Placement of Orders.

Sec. 552.216-73 Ordering Information.

Sec. 552.217-70 Evaluation of Options.

Sec. 552.217-71 Notice Regarding Option(s).

Sec. 552.219-70 Allocation of Orders--Partially Set-Aside Items.

Sec. 552.219-71 Notice to Offerors of Subcontracting Plan Requirements.

Sec. 552.219-72 Preparation, Submission, and Negotiation of 
          Subcontracting Plans.

Sec. 552.219-73 Goals for Subcontracting Plan.

Sec. 552.219-74 Section 8(a) Direct Award.

Sec. 552.223-70 Hazardous Substances.

Sec. 552.223-71 Nonconforming Hazardous Materials.

Sec. 552.223-72 Hazardous Material Information.

Sec. 552.225-70 Notice of Procurement Restriction--Hand or Measuring 
          Tools or Stainless Steel Flatware.

Sec. 552.227-70 Government Rights (Unlimited).

Sec. 552.227-71 Drawings and Other Data To Become Property of 
          Government.

Sec. 552.228-70 Workers' Compensation Laws.

Sec. 552.229-70 Federal, State, and Local Taxes.

Sec. 552.229-71 Federal Excise Tax--DC Government.

Sec. 552.232-1 Payments.

Sec. 552.232-8 Discounts for Prompt Payment.

Sec. 552.232-23 Assignment of Claims.

Sec. 552.232-25 Prompt Payment.

Sec. 552.232-70 Invoice Requirements.

Sec. 552.232-71 Adjusting Payments.

Sec. 552.232-72 Final Payment.

Sec. 552.232-73 Availability of Funds.

Sec. 552.232-74 Invoice Payments.

Sec. 552.232-75 Prompt Payment.

[[Page 225]]


Sec. 552.232-76 Electronic Funds Transfer Payment.

Sec. 552.232-77 Payment By Governmentwide Commercial Purchase Card.

Sec. 552.232-78 Payment Information.

Sec. 552.232-79 Payment by Credit Card.

Sec. 552.232-81 Payments by Non-Federal Ordering Activities.

Sec. 552.232-82 Contractor's Remittance (Payment) Address.

Sec. 552.232-83 Contractor's Billing Responsibilities.

Sec. 552.233-70 Protests Filed Directly with the General Services 
          Administration.

Sec. 552.233-71 Disputes (Utility Contracts).

Sec. 552.236-70 Definitions.

Sec. 552.236-71 Authorities and Limitations.

Sec. 552.236-72 Specialist.

Sec. 552.236-73 Basis of Award--Construction Contract.

Sec. 552.236-74 Working Hours.

Sec. 552.236-75 Use of Premises.

Sec. 552.236-76 Measurements.

Sec. 552.236-77 Specifications and Drawings.

Sec. 552.236-78 Shop Drawings, Coordination Drawings, and Schedules.

Sec. 552.236-79 Samples.

Sec. 552.236-80 Heat.

Sec. 552.236-81 Use of Equipment by the Government.

Sec. 552.236-82 Subcontracts.

Sec. 552.236-83 Requirement for a Project Labor Agreement.

Sec. 552.237-70 Qualifications of Offerors.

Sec. 552.237-71 Qualifications of Employees.

Sec. 552.237-72 Prohibition Regarding ``Quasi-Military Armed Forces.''

Sec. 552.237-73 Restriction on Disclosure of Information.

Sec. 552.238-70 Identification of Electronic Office Equipment Providing 
          Accessibility for the Handicapped.

Sec. 552.238-71 Submission and Distribution of Authorized FSS Schedule 
          Pricelists.

Sec. 552.238-72 Identification of Products That Have Environmental 
          Attributes.

Sec. 552.238-73 Cancellation.

Sec. 552.238-74 Industrial Funding Fee and Sales Reporting.

Sec. 552.238-75 Price Reductions.

Sec. 552.238-76 Definition (Federal Supply Schedules)--Recovery 
          Purchasing.

Sec. 552.238-77 Definition (Federal Supply Schedules).

Sec. 552.238-78 Scope of Contract (Eligible Ordering Activities).

Sec. 552.238-79 Use of Federal Supply Schedule Contracts by Certain 
          Entities--Cooperative Purchasing.

Sec. 552.238-80 Use of Federal Supply Schedule Contracts by Certain 
          Entities--Recovery Purchasing.

Sec. 552.242-70 Status Report of Orders and Shipments.

Sec. 552.243-70 Pricing of Adjustments.

Sec. 552.243-71 Equitable Adjustments.

Sec. 552.243-72 Modifications (Multiple Award Schedule).

Sec. 552.246-17 Warranty of Supplies of a Noncomplex Nature.

Sec. 552.246-70 Source Inspection by Quality Approved Manufacturer.

Sec. 552.246-71 Source Inspection by Government.

Sec. 552.246-72 Final Inspection and Tests.

Sec. 552.246-73 Warranty--Multiple Award Schedule.

Sec. 552.246-74 [Reserved]

Sec. 552.246-75 Guarantees.

Sec. 552.246-76 Warranty of Pesticides.

Sec. 552.247-70 Placarding Railcar Shipments.

Sec. 552.247-71 Diversion of Shipment Under F.O.B. Destination 
          Contracts.

Sec. 552.249-70 Termination for Convenience of the Government (Fixed 
          Price) (Short Form).

Sec. 552.249-71 Submission of Termination Liability Schedule.

Sec. 552.252-5 Authorized Deviations in Provisions.

Sec. 552.252-6 Authorized Deviations in Clauses.

Sec. 552.270-1 Instructions to Offerors--Acquisition of Leasehold 
          Interests in Real Property.

Sec. 552.270-2 Historic Preference.

Sec. 552.270-3 Parties To Execute Lease.

Sec. 552.270-4 Definitions.

Sec. 552.270-5 Subletting and Assignment.

Sec. 552.270-6 Maintenance of Building and Premises--Right of Entry.

Sec. 552.270-7 Fire and Casualty Damage.

Sec. 552.270-8 Compliance with Applicable Law.

Sec. 552.270-9 Inspection--Right of Entry.

Sec. 552.270-10 Failure in Performance.

Sec. 552.270-11 Successors Bound.

Sec. 552.270-12 Alterations.

Sec. 552.270-13 Proposals for Adjustment.

Sec. 552.270-14 Changes.

Sec. 552.270-15 Liquidated Damages.

Sec. 552.270-16 Adjustment for Vacant Premises.

Sec. 552.270-17 Delivery and Condition.

Sec. 552.270-18 Default in Delivery--Time Extensions.

Sec. 552.270-19 Progressive Occupancy.

Sec. 552.270-20 Payment.

Sec. 552.270-21 Effect of Acceptance and Occupancy.

Sec. 552.270-22 Default by Lessor During the Term.

Sec. 552.270-23 Subordination, Nondisturbance and Attornment.

Sec. 552.270-24 Statement of Lease.

Sec. 552.270-25 Substitution of Tenant Agency.

Sec. 552.270-26 No Waiver.

Sec. 552.270-27 Integrated Agreement.

Sec. 552.270-28 Mutuality of Obligation.

Sec. 552.270-29 Acceptance of Space.

    Authority: 40 U.S.C. 121(c).

    Source: 64 FR 37229, July 9, 1999, unless otherwise noted.

[[Page 226]]



Sec. 552.000  Scope of part.

    This part provides the text of provisions and clauses which are 
unique to GSA or supplement the FAR.

       Subpart 552.1_Instructions for Using Provisions and Clauses



Sec. 552.101-70  Using part 552.

    (a) Definition. ``Clause,'' as used in this subpart, means provision 
or clause as defined in FAR 52.101(a).
    (b) Numbering. (1) Clauses which are ``substantially'' the same as 
FAR clauses and clauses to be used instead of FAR clauses are identified 
as follows:
    (i) The clause has the same title as a clause in the FAR.
    (ii) The number 5 precedes the clause.
    (iii) The clause appears under the same subsection number and 
caption as in the FAR.
    (2) Supplemental clauses are numbered in the same manner as the FAR, 
except:
    (i) The chapter number precedes the clause.
    (ii) The subsection numbers begin with 70.
    (iii) The clauses are sequentially numbered, e.g., 552.232-70, 
552.232-71, etc.



Sec. 552.102  Incorporating provisions and clauses.

    You may incorporate clauses prescribed in the GSAR for solicitations 
and contracts by reference.



Sec. 552.103  Identification of provisions and clauses.

    Deviations. If the GSAR prescribes a class deviation from a FAR 
clause, identify the clause by the GSAR citation (e.g., 552.232-8 PROMPT 
PAYMENT DISCOUNT (NOV 1987) (DEVIATION FAR 552.232-8)).



Sec. 552.104  Procedures for modifying and completing provisions and 
          clauses.

    (a) The procedures in FAR 52.104 apply when you modify or complete a 
GSAR provision or clause. Provisions and clauses shall not be modified 
unless the GSAR authorizes their modification.
    (b) You do not need to identify modifications of clauses which 
result from negotiations unless you issue an amendment to the 
solicitation.
    (c) In general, you should modify FAR or GSAR clauses only for 
individual cases. If a contracting activity develops a modification for 
repeated use, furnish a copy to the Office of GSA Acquisition Policy 
(MV) for potential inclusion in the GSAR.



Sec. 552.105  Procedures for using alternates.

    The procedures in FAR 52.105 apply to GSAR part 552.



Sec. 552.107-70  Provisions and clauses prescribed in subpart 552.1.

    (a) Insert the provision at 552.252-5, Authorized Deviations in 
Provisions, in solicitation that include any FAR or GSAR clause with an 
authorized deviation. You must use this provision in lieu of the FAR 
provision at 552.252-5.
    (b) Insert the clause at 552.252-6, Authorized Deviations in 
Clauses, in solicitations and contracts that include any FAR or GSAR 
clause with an authorized deviation. You must use this clause in lieu of 
the FAR clause at 52.252-6.

              Subpart 552.2_Text of Provisions and Clauses



Sec. 552.200  Scope of subpart.

    This subpart sets forth the text of all GSAR provisions and clauses. 
It also cross-references the location in the GSAR that prescribes the 
use of each provision and clause.



Sec. 552.203-5  Covenant Against Contingent Fees.

    As prescribed in 502.404, insert the following clause:

              Convenant Against Contingent Fees (FEB 1990)

    (a) The Contractor warrants that no person or agency has been 
employed or retained to solicit or obtain this contract upon an 
agreement or understanding for a contingent fee, except a bona fide 
employee or agency. For breach or violation of this warrant, the 
Government shall have the right to annul this contract without liability 
or, in its discretion, to deduct from the contract price or

[[Page 227]]

consideration, or otherwise recover the full amount of the contingent 
fee.
    (b) ``Bona fide agency,'' as used in this clause, means an 
established commercial or selling agency (including licensed real estate 
agents or brokers), maintained by a Contractor for the purpose of 
securing business, that neither exerts nor proposes to exert improper 
influence to solicit or obtain Government contracts nor holds itself out 
as being able to obtain any Government contract or contracts through 
improper influence.
    ``Bona fide employee,'' as used in this clause, means a person, 
employed by a Contractor and subject to the Contractor's supervision and 
control as to time, place, and manner of performance, who neither exerts 
nor proposes to exert improper influence to solicit or obtain Government 
contracts nor holds out as being able to obtain any Government contract 
or contracts through improper influence.
    ``Contingent fee,'' as used in this clause, means any commission, 
percentage, brokerage, or other fee that is contingent upon the success 
that a person or concern has in securing a Government contract.
    ``Improper influence,'' as used in this clause, means any influence 
that induces or tends to induce a Government employee or officer to give 
consideration or to act regarding a Government contract on any basis 
other than the merits of the matter.

                             (End of clause)



Sec. 552.203-70  Price Adjustment for Illegal or Improper Activity.

    As prescribed in 503.104-9, insert the following clause:

      Price Adjustment for Illegal or Improper Activity (SEP 1999)

    (a) If the head of the contracting activity (HCA) or his or her 
designee determines that there was a violation of subsection 27(a) of 
the Office of Federal Procurement Policy Act, as amended (41 U.S.C. 
423), as implemented in the Federal Acquisition Regulation, the 
Government, at its election, may--
    (1) Reduce the monthly rental under this lease by 5 percent of the 
amount of the rental for each month of the remaining term of the lease, 
including any option periods, and recover 5 percent of the rental 
already paid;
    (2) Reduce payments for alterations not included in monthly rental 
payments by 5 percent of the amount of the alterations agreement; or
    (3) Reduce the payments for violations by a Lessor's subcontractor 
by an amount not to exceed the amount of profit or fee reflected in the 
subcontract at the time the subcontract was placed.
    (b) Prior to making a determination as set forth above, the HCA or 
designee shall provide to the Lessor a written notice of the action 
being considered and the basis therefor. The Lessor shall have a period 
determined by the agency head or designee, but not less than 30 calendar 
days after receipt of such notice, to submit in person, in writing, or 
through a representative, information and argument in opposition to the 
proposed reduction. The agency head or designee may, upon good cause 
shown, determine to deduct less than the above amounts from payments.
    (c) The rights and remedies of the Government specified herein are 
not exclusive, and are in addition to any other rights and remedies 
provided by law or under this lease.

                             (End of clause)



Sec. 552.203-71  Restriction on Advertising.

    As prescribed in 503.570-2, insert the following clause:

                  Restriction on Advertising (SEP 1999)

    The Contractor shall not refer to this contract in commercial 
advertising or similar promotions in such a manner as to state or imply 
that the product or service provided is endorsed or preferred by the 
White House, the Executive Office of the President, or any other element 
of the Federal Government, or is considered by these entities to be 
superior to other products or services. Any advertisement by the 
Contractor, including price-off coupons, that refers to a military 
resale activity shall contain the following statement: ``This 
advertisement is neither paid for nor sponsored, in whole or in part, by 
any element of the United States Government.''

                             (End of clause)



Sec. 552.209-70  Product Removal from Qualified Products List.

    As prescribed in 509.206-2, insert the following clause:

         Product Removal From Qualified Products List (SEP 1999)

    If, during the performance of this contract, the product being 
furnished is for any reason (except those outlined in paragraph 3.1.1 of 
the applicable Federal or Interim Federal Specification for security 
cabinets, security vault doors and changeable combination padlocks) 
removed from the Qualified Products List, the Government may terminate 
this contract for default.

                             (End of clause)



Sec. 552.209-71  Waiver of First Article Testing and Approval 

Requirement.

    As prescribed in 509.306, insert the following provision:

[[Page 228]]

   Waiver of First Article Testing and Approval Requirement (SEP 1999)

    (a) Offerors must submit an offer including testing and approval, 
however, an offeror may submit an alternate offer excluding testing and 
approval, provided the offeror satisfies the requirements for the 
waiving of first article testing.
    (b) Before a waiver of the first article testing requirement of this 
solicitation will be considered, the offeror is requested to identify 
the procurement under which the product offered was previously approved 
and accepted:

________________________________________________________________________
(Offeror to insert both contract number and applicable national stock 
number.)

                           (End of provision)



Sec. 552.209-72  Supplemental Requirements for First Article Approval--

Contractor Testing.

    As prescribed in 509.308-1, insert the following clause:

Supplemental Requirements for First Article Approval--Contractor Testing 
                               (SEP 1999)

    (a) The term ``Contracting Officer'' as used in FAR 52.209-3, First 
Article Approval--Contractor Testing, means the Administrative 
Contracting Officer (ACO).
    (b) The Contractor shall have either (1) the necessary inspection 
and test equipment at the Contractor's plant to perform first article 
testing, or (2) if the inspection and test equipment is not available, a 
letter of commitment from a laboratory acceptable to the Government to 
perform the inspection and testing.
    (c) When the Government elects to witness the first article testing, 
the Contractor shall conduct the testing between the hours of 7:00 AM 
and 5:00 PM, Monday thru Friday, unless a different time is agreed to by 
the ACO.
    (d) The first article test report shall contain:
    (1) The complete test data, the test method(s) used and date of 
test;
    (2) Signature and printed name of the individual who performed the 
inspection;
    (3) Applicable specification/CID and/or drawing numbers;
    (4) Name and type of test equipment used; and
    (5) All numerical values as a result of testing with each noted as 
to whether it passes or fails the contract test requirements.
    (e) The first article shall be retained by the Contractor as the 
manufacturing standard and will be kept in a secure area, under control 
of the Quality Assurance Specialist (QAS), to protest against possible 
changes or alterations for the life of the contract. If the first 
article sample is destroyed during testing or damaged to a point making 
it unusable as a standard, the Contractor, upon Government request, 
shall provide a second sample.
    (f) If the Contractor delivers the approved first article as part of 
the contract quantity, it shall be in the last scheduled delivery under 
the contract.

                             (End of clause)



Sec. 552.209-73  Supplemental Requirements for First Article Approval--

Government Testing.

    As prescribed in 509.308-2, insert the following clause:

Supplemental Requirements for First Article Approval--Government Testing 
                               (SEP 1999)

    (a) The term ``Contracting Officer'' as used in FAR 52.209-4, First 
Article Approval--Government Testing, means the Administrative 
Contracting Officer (ACO).
    (b) The first article shall be retained by the Contractor as the 
manufacturing standard and will be kept in a secure area, under the 
control of the Quality Assurance Specialist (QAS) to protect against 
possible changes or alterations for the life of the contract. If the 
first article sample is destroyed during testing or damaged to a point 
making it unusable as a standard, the Contractor, upon Government 
request, shall provide a second sample.
    (c) If the Contractor deliver the approved first article as part of 
the contract quantity, it shall be in the last scheduled delivery under 
the contract.

                             (End of clause)



Sec. 552.211-8  Time of Delivery.

    As prescribed in 511.404(a)(1) insert the following clause:

                       Time of Delivery (SEP 1999)

    (a) The time of delivery for each item means the time required after 
receipt of an order (1) to make delivery to a destination in the case of 
delivered prices, or (2) to place shipment in transit in the case of 
f.o.b. origin prices.
    (b) Delivery is required to be made at the point(s) specified within 
------ days after receipt of order.

                             (End of clause)

    Alternate I (SEP 1999). It it is necessary to show different 
delivery times for different items or groups of items, the Contracting 
Officer may substitute

[[Page 229]]

the following paragraph (b) for paragraph (b) of the basis clause.

    (b) Delivery is required to be made at the point(s) specified within 
the number of calendar days after receipt of order as indicated below:

------------------------------------------------------------------------
   Items or groups of items  (Special Item       Required delivery time
           Numbers or Nomenclature)                    (DAYS ARO)
------------------------------------------------------------------------
                                               .........................
                                               .........................
                                               .........................
------------------------------------------------------------------------



Sec. 552.211-15  Defense Priorities and Allocations System Requirements.

    As prescribed at 511.604, insert the following clause:

    Defense Priorities and Allocations System Requirements (SEP 2004)

    (a) Definitions.
    Approved program means a program determined to be necessary or 
appropriate for priorities and allocation support to promote the 
national defense by the Secretary of Defense, the Secretary of Energy, 
or the Department of Homeland Security Under Secretary for Emergency 
Preparedness and Response under the authority of the Defense Production 
Act, the Stafford Act, and Executive Order 12919, or the Selective 
Service Act and related statutes, and Executive Order 12742. See 
Schedule 1 of 15 CFR part 700 for a list of Delegate Agencies, approved 
programs, and program identification symbols at http://www.bis.doc.gov/
DefenseIndustrialBasePrograms/OSIES/DPAS/Default.htm).
    Defense Priorities and Allocations System (DPAS) means the 
regulation published at 15 CFR part 700 that requires preferential 
treatment for certain contracts and orders placed by a Delegate Agency 
in support of an approved program.
    Delegate Agency means an agency of the U.S. Government authorized by 
delegation from the Department of Commerce (DOC) to place priority 
ratings on contracts or orders needed to support approved programs.
    Rated order means, for the purpose of this contract, a delivery or 
task order issued in accordance with the provisions of the DPAS 
regulation (15 CFR part 700).
    (b) Rated Order Requirement. From time to time, the Contractor may 
receive a rated order under this contract from a Delegate Agency. The 
Contractor must give preferential treatment to rated orders as required 
by the Defense Priorities and Allocations System (DPAS) regulation (15 
CFR part 700). The existence of previously accepted unrated or lower 
rated orders is not sufficient reason to reject a rated order. Rated 
orders take preference over all unrated orders as necessary to meet 
required delivery dates. There are two levels of ratings designated by 
the symbol of either ``DO'' or ``DX.'' All ``DO'' rated orders have 
equal priority with each other and take preference over unrated orders. 
All ``DX'' rated orders have equal priority with each other and take 
preference over ``DO'' rated orders and unrated orders. The rating 
designation is followed by a program identification symbol. Program 
identification symbols indicate which approved program is supported by 
the rated order (see Schedule 1 of 15 CFR part 700 for a list of 
Delegate Agencies, approved programs, and program identification 
symbols).
    (c) Additional information. Additional information may be obtained 
at the DOC DPAS website http://www.bis.doc.gov/
DefenseIndustrialBasePrograms/OSIES/DPAS/Default.htm or by contacting 
the designated Administrative Contracting Officer.

[69 FR 55935, Sept. 16, 2004]



Sec. 552.211-70  [Reserved]



Sec. 552.211-71  Standard References.

    As prescribed in 511.204(a), insert the following clause:

                     Standard References (SEP 1999)

    (a) All documents and publications (such as, but not limited to, 
manuals, handbooks, codes, standards and specifications) cited in this 
contract for the purpose of establishing requirements applicable to 
equipment, materials, or workmanship under this contract, shall be 
deemed to be incorporated herein as fully as if printed and bound with 
the specifications of this contract, in accordance with the following:
    (1) Wherever reference is made to Standard Specifications of the 
Public Buildings Service, Interim Federal Specifications, Interim 
Amendments to Federal Specifications, Interim Federal Standards, or 
Interim Amendments to Federal Standards, the Contractor shall comply 
with the requirements set out in the issue or edition identified in this 
contract.
    (2) Wherever reference is made to any such document other than those 
specified in subparagraph (1) above, the Contractor shall comply with 
the requirements set out in the edition specified in this contract, or 
if not specified, the latest edition or revision thereof, as well as the 
latest amendment or supplement thereto, in effect on the date of the 
solicitation on this project, except as modified by, as otherwise 
provided in, or as limited to type, class or grade, by the 
specifications of this contract.
    (b) Upon request the Contractor shall make available at the job site 
within a reasonable time, a copy of each trade manual

[[Page 230]]

and standard which is incorporated by reference in this contract and 
which governs quality and workmanship.

                             (End of clause)



Sec. 552.211-72  Reference to Specifications in Drawings.

    As prescribed in 511.204(b), insert the following clause:

           References to Specifications in Drawings (FEB 1996)

    If military or other drawings are made a part of this contract, any 
reference in the drawings to Federal specifications or standards will be 
considered to be a reference to the date of such Federal specification 
or standard identified in the contract. If the date of the Federal 
specification or standard is not identified in the contract, the 
edition, including revisions thereto, in effect on the date the 
solicitation is issued will apply.

                             (End of clause)



Sec. 552.211-73  Marking.

    As prescribed in 511.204(c)(1), insert the following clause:

                           Marking (FEB 1996)

    (a) General requirements. Interior packages, if any, and exterior 
shipping containers shall be marked as specified elsewhere in the 
contract. Additional marking requirements may be specified on delivery 
orders issued under the contract. If not otherwise specified, interior 
packages and exterior shipping containers shall be marked in accordance 
with the following standards:
    (1) Deliveries to civilian activities. Supplies shall be marked in 
accordance with Federal Standard 123, edition in effect on the date of 
issuance of the solicitation.
    (2) Deliveries to military activities. Supplies shall be marked in 
accordance with Military Standard 129, edition in effect on the date of 
issuance of the solicitation.
    (b) Improperly marked material. When Government inspection and 
acceptance are at destination, and delivered supplies are not marked in 
accordance with contract requirements, the Government has the right, 
without prior notice to the Contractor, to perform the required marking, 
by contract or otherwise, and charge the Contractor therefor at the rate 
specified elsewhere in this contract. This right is not exclusive, and 
is in addition to other rights or remedies provided for in this 
contract.

                             (End of clause)



Sec. 552.211-74  Charges for Marking.

    As prescribed in 511.204(c)(2), insert a clause substantially as 
follows:

                     Charges for Marking (FEB 1996)

    The rate provided for in paragraph (b) of 552.211-73, Marking, is 
$--------* per man-hour or fraction thereof.

                             (End of clause)

    * The rate to be inserted in the above clause shall be determined 
and published by the Commissioner, Federal Supply Service, or a 
designee.



Sec. 552.211-75  Preservation, Packaging and Packing.

    As prescribed in 511.204(c)(3), insert the following clause:

             Preservation, Packaging, and Packing (FEB 1996)

    Unless otherwise specified, all items shall be preserved, packaged, 
and packed in accordance with normal commercial practices, as defined in 
the applicable commodity specification. Packaging and packing shall 
comply with the requirements of the Uniform Freight Classification and 
the National Motor Freight Classification (issue in effect at time of 
shipment) and each shipping container of each item in a shipment shall 
be of uniform size and content, except for residual quantities. Where 
special or unusual packing is specified in an order, but not 
specifically provided for by the contract, such packing details must be 
the subject of an agreement independently arrived at between the 
ordering agency and the Contractor.

                             (End of clause)

    Alternate I (MAY 2003). As prescribed at 511.204(c)(3), insert the 
following sentence in place of the last sentence of the clause:

    Where special or unusual packing is specified in an order, but not 
specifically provided for by the contract, such packing details must be 
the subject of an agreement independently arrived at between the 
ordering activity and the Contractor.

[64 FR 37229, July 9, 1999, as amended at 68 FR 24379, May 7, 2003]



Sec. 552.211-76  Charges for Packaging and Packing.

    As prescribed in 511.204(c)(4), insert a clause substantially as 
follows:

[[Page 231]]

              Charges for Packaging and Packing (FEB 1996)

    If supplies shipped to a GSA wholesale distribution center are not 
packaged and packed in accordance with contract requirements, the 
Government has the right, without prior notice to the Contractor, to 
perform the required repackaging/repacking, by contract or otherwise, 
and charge the Contractor therefore at the rate of $----*---- per man-
hour or fraction thereof. The Contractor will also be charged for 
material costs, if incurred. This right is not exclusive, and is in 
addition to other rights or remedies provided for in this contract.

                             (End of clause)

    * The rate to be inserted in the above clause shall be determined by 
the Commissioner, Federal Supply Service, or a designee.



Sec. 552.211-77  Packing List.

    As prescribed in 511.204(d), insert the following clause:

                         Packing List (FEB 1996)

    (a) A packing list or other suitable shipping document shall 
accompany each shipment and shall indicate:
    (1) Name and address of the consignor;
    (2) Name and complete address of the consignee;
    (3) Government order or requisition number;
    (4) Government bill of lading number covering the shipment (if any); 
and
    (5) Description of the material shipped, including item number, 
quantity, number of containers, and package number (if any).
    (b) When payment will be made by Government commercial credit card, 
in addition to the information in (a) above, the packing list or 
shipping document shall include:
    (1) Cardholder name and telephone number and
    (2) The term ``Credit Card.''

                             (End of clause)

    Alternate I (MAY 2003). As prescribed at 511.204(d), substitute the 
following paragraphs (a)(3) and (b) for (a)(3) and (b) of the basic 
clause:

    (a)(3) Ordering activity order or requisition number;
    (b) When payment will be made by Ordering activity commercial credit 
card, in addition to the information in (a) above, the packing list or 
shipping document shall include:
    (1) Cardholder name and telephone number; and
    (2) The term ``Credit Card.''

[64 FR 37229, July 9, 1999, as amended at 68 FR 24379, May 7, 2003]



Sec. 552.211-78  Commercial Delivery Schedule (Multiple Award Schedule).

    As prescribed in 511.404(a)(2), insert the following clause:

    Commercial Delivery Schedule (Multiple Award Schedule) (FEB 1996)

    (a) Time of Delivery. The Contractor shall deliver to destination 
within the number of calendar days after receipt of order (ARO) in the 
case of F.O.B. Destination prices, or to place of shipment in transit in 
the case of F.O.B. Origin prices, as set forth below. Offerors shall 
insert in the ``Time of Delivery (days ARO)'' column in the schedule of 
Items a definite number of calendar days within which delivery will be 
made. In no case shall the offered delivery time exceed the Contractor's 
normal commercial practice. The Government requires the Contractor's 
normal commercial delivery time, as long as it is less than the 
``STATED'' delivery time(s) shown below. If the Offeror does not insert 
a delivery time in the schedule of items, the Offeror will be deemed to 
offer delivery in accordance with the Government's stated delivery time 
as stated below:

------------------------------------------------------------------------
                                              Government's  Contractor's
                                                 stated        normal
   Items or group of items  (Special Item       delivery     commercial
           Number or Nomenclature)             time  (days    delivery
                                                  ARO)          time
------------------------------------------------------------------------
                                              ............  ............
                                              ............  ............
                                              ............  ............
------------------------------------------------------------------------

    (b) Expedited Delivery Times. For those items that can be delivered 
quicker than the delivery times in paragraph (a), above, the Offeror is 
requested to insert below, a time (hours/days ARO) that delivery can be 
made when expedited delivery is requested.

------------------------------------------------------------------------
                                                              Expedited
                                                               delivery
      Item or group of items  (Special Item Number or            time
                       Nomenclature)                         (HOURS/DAYS
                                                                 ARO)
------------------------------------------------------------------------
                                                             ...........
                                                             ...........
                                                             ...........
------------------------------------------------------------------------

    (c) Overnight and 2-Day Delivery Times. Ordering activities may 
require overnight or 2-day delivery. The Offeror is requested to 
annotate its price list or by separate attachment identify the items 
that can be delivered overnight or within 2 days. Contractors offering 
such delivery services will be required to state in the cover sheet to 
its FSS price list details concerning this service.

[[Page 232]]

                             (End of clause)



Sec. 552.211-79  Acceptable Age of Supplies.

    As prescribed in 511.404(a)(3)(i), insert the following clause:

                  Acceptable Age of Supplies (FEB 1996)

    The supplies furnished under this contract shall not be more than --
-- months old, beginning with the first full month after the date of 
manufacture marked on the container. For the purpose of this clause, 
supplies shall be considered to be furnished (1) when they are offered 
to the Government for inspection and testing, or (2) on the date of 
shipment if shipment is authorized to be made without prior inspection 
by the Government. If the age of the supplies furnished under this 
contract is greater than the specified period, the Government may 
exercise its right to reject the supplies.

                             (End of clause)

    Alternate I (FEB 1996). For items having a limited shelf-life, the 
sentence below should be substituted for the first sentence of the basic 
clause when authorized:

    The supplies furnished under this contract shall not be more than --
-- days old, beginning with the date of manufacture (month, day, year) 
marked on the container.



Sec. 552.211-80  Age on Delivery.

    As prescribed in 511.404(a)(3)(ii) insert the following clause:

                       Age on Delivery (FEB 1996)

    Included in the description of each shelf-life item is a statement 
regarding the ``age on delivery.'' The age of the item(s) shall not 
exceed the number of months shown in the item description, counted from 
the first day of the month after the month of manufacture to the date of 
delivery to the specified delivery point(s). If the age of the supplies 
delivered under this contract is greater than the number of months 
shown, the Government may exercise its right to reject the supplies.

                             (End of clause)



Sec. 552.211-81  Time of Shipment.

    As prescribed in 511.404(a)(4), insert the following clause:

                       Time of Shipment (FEB 1996)

    Shipment is required within ------ calendar days after receipt of 
order.

                             (End of clause)

    Alternate I (FEB 1996). If the contract will require shipment more 
than 45 calendar days after receipt of the order, the following 
paragraph should be added to the basic clause.

    Each delivery order will specify that shipment is required no later 
than the number of days shown above. If such order also states that 
``Early Shipment is Precluded,'' the Contractor agrees to make shipment 
no sooner than ------ calendar days after receipt of order. Earlier 
shipments may result in nonacceptance of the supplies at the delivery 
point at the time of arrival.

    (The second number to be inserted should be 15 calendar days less 
than the first number.)



Sec. 552.211-82  Notice of Shipment.

    As prescribed in 511.404(a)(5), insert the following clause:

                      Notice of Shipment (FEB 1996)

    If specified in an order placed under this contract, the Contractor 
shall, at the time each shipment is made on such order, furnish a notice 
of shipment to either the consignee or the ordering office or both, as 
specified. This requirement may be satisfied by completion and return of 
appropriate forms furnished by the ordering office or by the furnishing 
of copies of bills of lading, freight bills, or similar documents in 
accordance with normal commercial practice if such document clearly 
identifies the order number, items and quantities shipped, date of 
shipment, point of origin, method of shipment and routing, and the name 
of initial carrier.

                             (End of clause)



Sec. 552.211-83  Availability for Inspection, Testing, and Shipment/

Delivery.

    As prescribed in 511.404(a)(6), insert the following clause:

 Availability for Inspection, Testing, and Shipment/Delivery (FEB 1996)

    (a) The Government requires that the supplies be made available for 
inspection and testing within --------*-------- calendar days after 
receipt of [Insert ``Notice of Award'' or ``order''], and be [Insert 
``shipped'' or ``delivered''] within --------*-------- calendar days 
after receipt of (1) notice of approval and release by the Government 
inspector or (2) authorization to ship without Government inspection.
    (b) Failure to make supplies available for inspection and testing or 
to [Insert ``ship'' or

[[Page 233]]

``deliver''] as required by this clause may result in termination of 
this contract for default.

                             (End of clause)

    Alternate I (FEB 1996). If the contract is for stock items, the 
Contracting Officer shall insert ``shipped'' or ``ship'' in the basic 
clause, add the following paragraph (b) and redesignate paragraph (b) of 
the basic clause as paragraph (c).

    (b) If notice of approval and release by the Government inspector or 
authorization to ship without Government inspection is received before 
--------*-------- calendar days after receipt of the [Insert ``Notice of 
Award'' or ``order''], receipt of such notice shall be deemed to be 
received on the --------*-------- calendar day after receipt of [Insert 
``Notice of Award'' or ``order'']. Shipments shall not be made before 
the --------*-------- calendar day after receipt of the [Insert ``Notice 
of Award'' or ``order''] unless authorized in writing by the Contracting 
Officer.
    * Entries are normally the same number of days specified for 
availability.



Sec. 552.211-84  Non-Compliance With Contract Requirements.

    As prescribed in 511.404(b), insert the following clause:

          Non-Compliance With Contract Requirements (FEB 1996)

    In the event the Contractor, after receiving written notice from the 
Contracting Officer of non-compliance with any requirement of this 
contract, fails to initiate promptly such action as may be appropriate 
to comply with the specified requirement within a reasonable period of 
time, the Contracting Officer shall have the right to order the 
Contractor to stop any or all work under the contract until the 
Contractor has complied or has initiated such action as may be 
appropriate to comply within a reasonable period of time. The Contractor 
will not be entitled to any extension of contract time or payment for 
any costs incurred as a result of being ordered to stop work for such 
cause.

                             (End of clause)



Sec. 552.212-70  Preparation of Offer (Multiple Award Schedule).

    As prescribed in 512.301(a)(1), insert the following clause:

        Preparation of Offer (Multiple Award Schedule) (AUG 1997)

    (a) Definitions. Concession, as used in this solicitation, means a 
benefit, enhancement or privilege (other than a discount), which either 
reduces the overall cost of a customer's acquisition or encourages a 
customer to consummate a purchase. Concessions include, but are not 
limited to freight allowance, extended warranty, extended price 
guarantees, free installation and bonus goods.
    Discount, as used in this solicitation, means a reduction to catalog 
prices (published or unpublished). Discounts include, but are not 
limited to, rebates, quantity discounts, purchase option credits, and 
any other terms or conditions other than concessions) which reduce the 
amount of money a customer ultimately pays for goods or services ordered 
or received. Any net price lower than the list price is considered a 
``discount'' by the percentage difference from the list price to the net 
price.
    (b) For each Special Item Number (SIN) included in an offer, the 
Offeror shall provide the information outlined in paragraph (c). 
Offerors may provide a single response covering more than one SIN, if 
the information disclosed is the same for all products under each SIN. 
If discounts and concessions vary by model or product line, offerors 
shall ensure that information is clearly annotated as to item or items 
referenced.
    (c) Provide information described below for each SIN:
    (1) Two copies of the offeror's current published (dated or 
otherwise identified) commercial descriptive catalogs and/or price 
list(s) from which discounts are offered. If special catalogs or price 
lists are printed for the purpose of this offer, such descriptive 
catalogs or price lists shall include a statement indicating the special 
catalog or price list represent a verbatim extract from the Offeror's 
commercial catalog and/or price list and identify the descriptive 
catalog and/or price list from which the information has been extracted.
    (2) Next to each offered item in the commercial catalog and/or price 
list, the Offeror shall write the special item number (SIN) under which 
the item is being offered. Unless a special catalog or price list is 
submitted, all other items shall be marked ``excluded,'' lined out, and 
initiated by the offeror.
    (3) The discount(s) offered under this solicitation. The description 
of discounts offered shall include all discounts, such as prompt payment 
discounts, quantity/dollar volume discounts (indicate whether models/
products can be combined within the SIN or whether SINs can be combined 
to earn discounts), blanket purchase agreement discounts, or purchase 
option credits. If the terms of sale appearing in the commercial 
catalogs or

[[Page 234]]

price list on which an offer is based are in conflict with the terms of 
this solicitation, the latter shall govern.
    (4) A description of concessions offered under this solicitation 
which are not granted to other customers. Such concessions may include, 
but are not limited to, an extended warranty, a return/exchange goods 
policy, or enhanced or additional services.
    (5) If the Offeror is a dealer/reseller or the Offeror will use 
dealers to perform any aspect of contract awarded under this 
solicitation, describe the functions, if any, that the dealer/reseller 
will perform.

                             (End of clause)



Sec. 552.212-71  Contract Terms and Conditions Applicable to GSA 

Acquisition of Commercial Items.

    As prescribed in 512.301(a)(2), insert the following clause:

     Contract Terms and Conditions Applicable to GSA Acquisition of 
                       Commercial Items (JUL 2003)

    The Contractor agrees to comply with any provision or clause that is 
incorporated herein by reference to implement agency policy applicable 
to acquisition of commercial items or components. The provision or 
clause in effect based on the applicable regulation cited on the date 
the solicitation is issued applies unless otherwise stated herein. The 
following provisions and clauses are incorporated by reference:

[The contracting officer should either check the provisions and clauses 
that apply or delete the provisions and clauses that do not apply from 
the list. The contracting officer may add the date of the provision or 
clause if desired for clarity.]
    (a) Provisions.

---- 552.237-70 Qualifications of Offerors

    (b) Clauses.

---- 552.203-71 Restriction on Advertising
---- 552.211-73 Marking
---- 552.2215-70 Examination of Records by GSA
---- 552.215-71 Examination of Records by GSA (Multiple Award Schedule)
---- 552.215-72 Price Adjustment--Failure to Provide Accurate 
Information
---- 552.219-70 Allocation of Orders--Partially Set-Aside Items
---- 552.228-70 Workers' Compensation Laws
---- 552.229-70 Federal, State, and Local Taxes
---- 552.232-8 Discounts for Prompt Payment
---- 552.232-23 Assignment of Claims
---- 552.232-71 Adjusting Payments
---- 552.232-72 Final Payment
---- 552.232-73 Availability of Funds
---- 552.232-78 Payment Information
---- 552.237-71 Qualifications of Employees
---- 552.238-71 Submission and Distribution of Authorized FSS Schedule 
Price List
---- 552.238-74 Industrial Funding Fee and Sales Reporting
---- 552.238-75 Price Reductions
---- 552.242-70 Status Report of Orders and Shipments
---- 552.243-72 Modifications (Multiple Award Schedule)
---- 552.246-73 Warranty--Multiple Award Schedule
---- 552.246-76 Warranty of Pesticides

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 65 FR 41379, July 5, 2000; 68 
FR 41288, July 11, 2003]



Sec. 552.212-72  Contract Terms and Conditions Required To Implement 

Statutes or Executive Orders Applicable to GSA Acquisition of 

Commercial Items.

    As prescribed in 512.301(a)(3), insert the following clause:

    Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders Applicable to GSA Acquisition of Commercial Items (SEPT 
                                  2003)

    The Contractor agrees to comply with any provision or clause that is 
incorporated herein by reference to implement provisions of law or 
Executive Orders applicable to acquisition of commercial items or 
components. The provision or clause in effect based on the applicable 
regulation cited on the date the solicitation is issued applies unless 
otherwise stated herein. The following provisions and clauses are 
incorporated by reference:

[The contracting officer should either check the provisions and clauses 
that apply or delete the provisions and clauses that do not apply from 
the list. The contracting officer may add the date of the provision or 
clause if desired for clarity.]
    (a) Provisions.

---- 552.223-72 Hazardous Material Information

    (b) Clauses.

---- 552.223-70 Hazardous Substances
---- 552.223-71 Nonconforming Hazardous Material
---- 552.238-70 Identification of Electronic Office Equipment Providing 
Accessibility for the Handicapped
---- 552.238-72 Identification of Products That Have Environmental 
Attributes

[[Page 235]]

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 65 FR 41379, July 5, 2000; 68 
FR 41288, July 11, 2003; 68 FR 52128, Sept. 2, 2003]



Sec. 552.212-73  Evaluation--Commercial Items (Multiple Award Schedule).

    As prescribed in 512.301(a)(4), insert the following provision:

    Evaluation--Commercial Items (Multiple Award Schedule) (AUG 1997)

    (a) The Government may make multiple awards for the supplies or 
services offered in response to this solicitation that meet the 
definition of a ``commercial item'' in FAR 52.202-1. Awards may be made 
to those responsible offerors that offer reasonable pricing, conforming 
to the solicitation, and will be most advantageous to the Government, 
taking into consideration the multiplicity and complexity of items of 
various manufacturers and the differences in performance required to 
accomplish or produce required end results, production and distribution 
facilities, price, compliance with delivery requirements, and other 
pertinent factors. By providing a selection of comparable supplies or 
services, ordering activities are afforded the opportunity to fulfill 
their requirements with the item(s) that constitute the best value and 
that meet their needs at the lowest overall cost.
    (b) A written notice of award or acceptance of an offer, mailed or 
otherwise furnished to the offeror within the time for acceptance 
specified in the offer, shall result in a binding contract without 
further action by either party. Before the offer's specified expiration 
time, the Government may accept an offer (or part of an offer), whether 
or not there are negotiations after its receipt, unless a written notice 
of withdrawal is received before award.

                           (End of provision)

    Alternate I (AUG 1997). When anticipating competition of identical 
items, add the following paragraph after paragraph (b) of the basic 
provision.

    (c) The Government reserves the right to award only one contract for 
all or a part of a manufacturer's product line. When two or more 
offerors (e.g., dealers/resellers) offer the identical product, award 
may be made competitively to only one offeror on the basis of the lowest 
price. (Discounts for early payment will not be considered as an 
evaluation factor in determining the low offeror). During initial open 
season for an option period, any offers that are equal to or lower than 
the current contract price received for identical items will be 
considered. Current contractors will also be allowed to submit offers 
for identical items during this initial open season. The current 
contractor which has the identical item on contract will be included in 
the evaluation process. The Government will evaluate all offers and may 
award only one contract for each specified product or aggregate group.



Sec. 552.214-70  ``All or None'' Offers.

    As prescribed in 514.201-6, insert the following provision:

                    ``All or None'' Offers (SEP 1999)

    (a) Unless awards in the aggregate are specifically precluded in 
this solicitation, the Government reserves the right to evaluate offers 
and make awards on all ``all or none'' basis as provided below.
    (b) An offer submitted on an ``all or none'' or similar basis will 
be evaluated as follows: The lowest acceptable offer exclusive of the 
``all or none'' offer will be selected with respect to each item (or 
group of items when the solicitation provides for aggregate awards) and 
the total cost of all items thus determined shall be compared with the 
total of the lowest acceptable ``all or none'' offer. Award will be made 
to result in the lowest total cost to the Government.

                           (End of provision)

    Alternate I (SEP 1999). For a requirements or indefinite quantity 
contract, the following paragraph (b) shall be substituted in the basic 
provision:

    (b) An offer submitted on an ``all or none'' or similar basis will 
not be considered unless the offer is low on each item to which the 
``all or none'' offer is made applicable. The term ``each item'' as used 
in this provision refers either to an item that under the terms of the 
solicitation may be independently awarded, or to a group of items on 
which an award is to be made in the aggregate.



Sec. 552.214-71  Progressive Awards and Monthly Quantity Allocations.

    As prescribed in 514.201-7(a), insert the following clause:

     Progressive Awards and Monthly Quantity Allocations (SEP 1999)

    (a) Monthly quantity allocation.
    (1) Set forth below are the Government's estimated annual and 
monthly requirements for each stock item covered by this solicitation. 
Offerors shall indicate, in the spaces provided, the monthly quantity 
which they are willing to furnish of any item or group of items 
involving the use of the same production facilities. In making monthly 
allocations, offerors are urged to group as many

[[Page 236]]

items as possible. Such groupings will make it possible for the 
Government to make fullest use of the production capabilities of each 
offeror.
    (2) Offerors need not limit their monthly allocations to the 
Government's estimated monthly requirements, since additional 
unanticipated needs may occur during the period of the contract. If an 
offeror does not insert monthly allocation quantities, it will be deemed 
to offer to furnish all of the Government's requirements, even though 
they may exceed the stated estimated requirements.

------------------------------------------------------------------------
                                   Estimated annual    Estimated monthly
     National stock number           requirements        requirements
------------------------------------------------------------------------
                                 ...................
                                 ...................
------------------------------------------------------------------------


                  Bidders Monthly Quantity Allocations
------------------------------------------------------------------------
                                                  Monthly allocation
          Items or groups of items                     quantity
------------------------------------------------------------------------
                                              ..........................
                                              ..........................
------------------------------------------------------------------------

    (b) Progressive awards. If the low responsive offeror's monthly 
quantity allocation is less than the Government's estimated 
requirements, the Government may make progressive awards beginning with 
the low responsive offeror and including each next low responsive 
offeror to the extent necessary to meet the estimated requirements.
    (c) Ordering procedures. If progressive awards are made, orders will 
be placed first with the Contractor offering the lowest price on each 
item normally up to that Contractor's maximum quantity allocation and 
then, in the same manner, successively to other Contractors. When 
cumulative orders during any month, placed with a lower priced 
Contractor, equal or exceed 95 percent of its monthly quantity 
allocation, to avoid the placement of unduly small orders or the 
splitting of a subsequent order, the Government reserves the right to 
award the full quantity of the subsequent order to the next lower priced 
Contractor. In no case will orders be placed with any Contractor in 
excess of its monthly quantity allocation.

                             (End of clause)



Sec. 552.214-72  Bid Sample Requirements.

    As prescribed in 514.202-4(a)(3), insert the following provision:

                   Bid Sample Requirements (SEP 1999)

    This provision supplements FAR 52.214-20, which is incorporated by 
reference. Samples shall be from the production of the manufacturer 
whose products will be supplied under resultant contracts.
    (a) Two bid samples are required for each of the following items in 
this solicitation:

________________________________________________________________________
    (b) Two representative samples shall be submitted for each of the 
following items upon which a bid is submitted:

------------------------------------------------------------------------
                                            Acceptable representative
                 Items                               samples
------------------------------------------------------------------------
                                         ...............................
                                         ...............................
------------------------------------------------------------------------

    Note: (1) Bidders [squ] are or [squ] are not authorized to re-apply 
samples being retained by GSA in connection with previous solicitations 
and/or resultant contracts. When the block ``are'' is marked by the 
government, FAR 52.214-20, Alternate II, shall apply.
    (2) Bidders who propose to furnish an item or group of items from 
more than one manufacturer or production point must submit two samples 
from the production of each manufacturer or production point.
    (c) Samples will be evaluated to determine compliance with all 
characteristics listed below:

------------------------------------------------------------------------
        Subjective characteristics            Objective characteristics
------------------------------------------------------------------------
                                            ............................
                                            ............................
------------------------------------------------------------------------

    (d) Forward samples addressed to the Sample Room indicated below. 
Except for samples delivered by U.S. Mail, deliveries will be accepted 
between the hours of -------------------- Mondays through Fridays, 
official holidays excluded.
    Caution: Use proper address for method of shipment selected.

Mail and Parcel Post
(Insert Address of Bid Sample Room)
Freight or Express
(Insert address of Bid Sample Room)

                           (End of provision)



Sec. 552.215-70  Examination of Records by GSA.

    As prescribed in 514.201-7(b) and 515.209-70(a) insert the following 
clause:

                Examination of Records by GSA (FEB 1996)

    The Contractor agrees that the Administrator of General Services or 
any duly authorized representatives shall, until the expiration of 3 
years after final payment under this contract, or of the time periods 
for the particular records specified in Subpart 4.7 of the Federal 
Acquisition Regulation (48 CFR 4.7), whichever expires earlier, have 
access to and the right to examine any books, documents, papers, and 
records of the Contractor

[[Page 237]]

involving transactions related to this contract or compliance with any 
clauses thereunder. The Contractor further agrees to include in all its 
subcontracts hereunder a provision to the effect that the subcontractor 
agrees that the Administrator of General Services or any authorized 
representatives shall, until the expiration of 3 years after final 
payment under the subcontract, or of the time periods for the particular 
records specified in Subpart 4.7 of the Federal Acquisition Regulation 
(48 CFR 4.7), whichever expires earlier, have access to and the right to 
examine any books, documents, papers, and records of such subcontractor 
involving transactions related to the subcontract or compliance with any 
clauses thereunder. The term ``subcontract'' as used in this clause 
excludes (a) purchase orders not exceeding $100,000 and (b) subcontracts 
or purchase orders for public utility services at rates established for 
uniform applicability to the general public.

                             (End of clause)



Sec. 552.215-71  Examination of Records by GSA (Multiple Award 

Schedule).

    As prescribed in 515.209-70(c), insert the following clause:

   Examination of Records by GSA (Multiple Award Schedule) (JULY 2003)

    The Contractor agrees that the Administrator of General Services or 
any duly authorized representative shall have access to and the right to 
examine any books, documents, papers and records of the contractor 
involving transactions related to this contract for overbillings, 
billing errors, compliance with the Price Reduction clause and 
compliance with the Industrial Funding Fee and Sales Reporting clause of 
this contract. This authority shall expire 3 years after final payment. 
The basic contract and each option shall be treated as separate 
contracts for purposes of applying this clause.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 68 FR 41288, July 11, 2003]



Sec. 552.215-72  Price Adjustment--Failure To Provide Accurate 

Information.

    As prescribed in 515.408(d), insert the following clause:

  Price Adjustment--Failure To Provide Accurate Information (AUG 1997)

    (a) The Government, at its election, may reduce the price of this 
contract or contract modification if the Contracting Officer determines 
after award of this contract or contract modification that the price 
negotiated was increased by a significant amount because the Contractor 
failed to:
    (1) Provide information required by this solicitation/contract or 
otherwise requested by the Government; or
    (2) Submit information that was current, accurate, and complete; or
    (3) Disclose changes in the Contractor's commercial pricelist(s), 
discounts or discounting policies which occurred after the original 
submission and prior to the completion of negotiations.
    (b) The Government will consider information submitted to be 
current, accurate and complete if the data is current, accurate and 
complete as of 14 calendar days prior to the date it is submitted.
    (c) If any reduction in the contract price under this clause reduces 
the price for items for which payment was made prior to the date of the 
modification reflecting the price reduction, the Contractor shall be 
liable to and shall pay the United States--
    (1) The amount of the overpayment; and
    (2) Simple interest on the amount of such overpayment to be computed 
from the date(s) of overpayment to the Contractor to the date the 
Government is repaid by the Contractor at the applicable underpayment 
rate effective each quarter prescribed by the Secretary of Treasury 
under 26 U.S.C. 6621(a)(2).
    (d) Failure to agree on the amount of the decrease shall be resolved 
as a dispute.
    (e) In addition to the remedy in paragraph (a) of this clause, the 
Government may terminate this contract for default. The rights and 
remedies of the Government specified herein are not exclusive, and are 
in addition to any other rights and remedies provided by law or under 
this contract.

                             (End of clause)



Sec. 552.216-70  Economic Price Adjustment--FSS Multiple Award Schedule 

Contracts.

    As prescribed in 516.203-4(a), insert the following clause:

 Economic Price Adjustment--FSS Multiple Award Schedule Contracts (SEP 
                                  1999)

    Price adjustments include price increases and price decreases. 
Adjustments will be considered as follows:
    (a) Contractors shall submit price decreases anytime during the 
contract period in which they occur. Price decreases will be handled in 
accordance with the provisions of the Price Reduction Clause.
    (b) Contractors may request price increases under the following 
conditions:

[[Page 238]]

    (1) Increases resulting from a reissue or other modification of the 
Contractor's commercial catalog/pricelist that was used as the basis for 
the contract award.
    (2) Only three increases will be considered during the contract 
period.
    (3) Increases are requested after the first 30 days of the contract 
period and prior to the last 60 days of the contract period.
    (4) At least 30 days elapse between requested increases.
    (c) The aggregate of the increases in any contract unit price under 
this clause shall not exceed ------* percent of the original contract 
unit price. The Government reserves the right to raise this ceiling 
where changes in market conditions during the contract period support an 
increase.
    (d) The following material shall be submitted with the request for a 
price increase:
    (1) A copy of the commercial catalog/pricelist showing the price 
increase and the effective date for commercial customers.
    (2) Commercial Sales Practice format regarding the Contractor's 
commercial pricing practice relating to the reissued or modified 
catalog/price-list, or a certification that no change has occurred in 
the data since completion of the initial negotiation or a subsequent 
submission.
    (3) Documentation supporting the reasonableness of the price 
increase.
    (e) The Government reserves the right to exercise one of the 
following options:
    (1) Accept the Contractor's price increases as requested when all 
conditions of (b), (c), and (d) of this clause are satisfied;
    (2) Negotiate more favorable discounts from the new commercial 
prices when the total increase requested is not supported; or,
    (3) Remove the product(s) from contract involved pursuant to the 
Cancellation Clause of this contract, when the increase requested is not 
supported.
    (f) The contract modification reflecting the price adjustment shall 
be signed by the Government and made effective upon receipt of 
notification from the Contractor that the new catalog/pricelist has been 
mailed to the addresses previously furnished by the Contracting Officer, 
provided that in no event shall such price adjustment be effective prior 
to the effective date of the commercial price increases. The increased 
contract prices shall apply to delivery orders issued to the Contractor 
on or after the effective date of the contract modification.

                             (End of clause)

    * Insert the percent appropriate at the time the solicitation is 
issued. This percentage should normally be 10 percent, unless based on a 
trend established by an appropriate index such as the Producer Prices 
and Price Index during the most recent 6-month period indicates that a 
different percentage is more appropriate. Any ceiling other than 10 
percent must be approved by the contracting director.
    Alternate I (SEP 1999). The following is substituted for paragraphs 
(b) and (c) of the clause:

    (b) Contractors may request price increases to be effective on or 
after the first 12 months of the contract period providing all of the 
following conditions are met:
    (1) Increases resulting from a reissue or other modification of the 
Contractor's commercial catalog/pricelist that was used as the basis for 
the contract award.
    (2) No more than three increases will be considered during each 
succeeding 12-month period of the contract. (For succeeding contract 
periods of less than 12 months, up to three increases will be considered 
subject to the other conditions of this subparagraph (b)).
    (3) Increases are requested before the last 60 days of the contract 
period.
    (4) At least 30 days elapse between requested increases.
    (c) In any contract period during which price increases will be 
considered, the aggregate of the increases during any 12-month period 
shall not exceed *-------- percent of the contract unit price in effect 
at the end of the preceding 12-month period. The Government reserves the 
right to raise the ceiling when market conditions during the contract 
period support such a change.
    * Insert the percentage appropriate at the time the solicitation is 
issued. This percentage should be determined based on the trend 
established by an appropriate index such as the Producer Prices and 
Price Index. A ceiling of more than 10 percent must be approved by the 
Contracting Director.

[64 FR 37229, July 9, 1999; 64 FR 49844, Sept. 14, 1999]



Sec. 552.216-71  Economic Price Adjustment--Stock and Special Order 

Program Contracts.

    As prescribed in 516.203-4(b), insert the following clause:

Economic Price Adjustment-Stock and Special Order Program Contracts (SEP 
                                  1999)

    (a) ``Producer Price Index'' (PPI), as used in this clause, means 
the originally released index, not seasonally adjusted, published by the 
Bureau of Labor Statistics, U.S. Department of Labor (Labor) for product 
code -------- found under Table --------.
    (b) During the term of the contract, the award price may be adjusted 
once upward or

[[Page 239]]

downward a maximum of *-------- percent. Any price adjustment for the 
product code shall be based upon the percentage change in the PPI 
released in the month prior to the initial month of the contract period 
specified in the solicitation for sealed bidding or the month prior to 
award in negotiation (the base index) and the PPI released 12 months 
later (the updated index). The formula for determining the Adjusted 
Contract Price (ACP) applicable to shipments for the balance of the 
contract period is--
[GRAPHIC] [TIFF OMITTED] TR09JY99.000

    (c) If the PPI is not available for the month of the base index or 
the updated index, the month with the most recently published PPI prior 
to the month determining the base index or updated index shall be used.
    (d) If a product code is discontinued, the Government and the 
Contractor will mutually agree to substitute a similar product code. If 
Labor designates an index with a new title and/or code number as 
continuous with the product code specified above, the new index shall be 
used.
    (e) Unless the Contractor's written request for a price adjustment 
resulting from the application of the formula in (b) above is received 
by the Contracting Officer within 30 calendar days of the release of the 
updated index, the Contractor shall have waived its right to an upward 
price adjustment for the balance of the contract. Alternatively, the 
Contracting Officer will unilaterally adjust the award price downward 
when appropriate using the updated index defined in (b) above.
    (f) Price adjustments shall be effective upon execution of a 
contract modification by the Government or on the 31st day following the 
release of the updated index, whichever is later, shall indicate the 
updated index and percent of change as well as the ACP, and shall not 
apply to delivery orders issued before the effective date.

                             (End of clause)

    Alternate I (SEP 1999). As prescribed in 516.203-4(b) (1) and (2), 
substitute the following paragraphs (b), (e) and (f) for paragraphs (b), 
(e) and (f) of the basic clause:

    (b) In any option period, the contract price may be adjusted upward 
or downward a maximum of *-------- percent.
    (1) For the first option period, any price adjustment for the 
product code shall be based upon the percentage change in the PPI 
released in the month prior to the initial month of the contract period 
specified in the solicitation for sealed bidding or the month prior to 
award in negotiation (the base index) and the PPI released in the third 
month before completion of the initial contract period stated in the 
solicitation (the updated index). This initial contract period may be 
less than 12 months. The formula for determining the Adjusted Contract 
Price (ACP) applicable to shipments during the first option period is--
[GRAPHIC] [TIFF OMITTED] TR09JY99.001

    (2) For any subsequent option period, the price adjustment shall be 
the percentage change between the previously updated index (the new base 
index) and the PPI released 12 months later (the most recent updated 
index). This percentage shall be applied to the Current Contract Price 
(CCP). The formula for determining the ACP applicable to shipments for 
the subsequent option period(s) is--
[GRAPHIC] [TIFF OMITTED] TR09JY99.002

    (e) Unless the Contractor's written request for a price adjustment 
resulting from the application of the formulas in (b) (1) or (2) above 
is received by the Contracting Officer within 30 calendar days of the 
date of the Government's preliminary written notice of its intent to 
exercise the option, the Contractors shall have waived its right to an 
upward price adjustment for that option period. Alternatively, the 
Contracting Officer in its written notice shall exercise the option at 
the CCP or at a reduced price when appropriate using the formulas in (b) 
(1) or (2) above.
    (f) Price adjustments shall be effected by execution of a contract 
modification by the Government indicating the most recent updated index 
and percent of change and shall apply to delivery orders placed on or 
after the first day of the option period.

    Alternate II (SEP 1999). As prescribed in 516.203-4(b)(2), add the 
following paragraph (g) to the basic clause.

    (g) No price adjustment will be made unless the percentage in the 
PPI is at least **---- percent.

    * The appropriate percentage should be determined based upon the 
historical trend in the PPI for the product code. A ceiling of more than 
10 percent must be approved by the Contracting Director.
    ** The Contracting Officer should insert a lower percent than the 
maximum percentage stated in paragraph (b) of the clause.

[[Page 240]]



Sec. 552.216-72  Placement of Orders.

    As prescribed in 516.506, inset the following clause:

                     Placement of Orders (SEP 1999)

    (a) Delivery orders (orders) will be placed by:
    [Contracting Officer insert names of Federal agencies]
    (b) Orders may be placed through Electronic Data Interchange (EDI) 
or mailed in paper form. EDI orders shall be placed using the American 
National Standards Institute (ANSI) X12 Standard for Electronic Data 
Interchange (EDI) format.
    (c) If the Contractor agrees, GSA's Federal Supply Service (FSS) 
will place all orders by EDI using computer-to-computer EDI. If 
computer-to-computer EDI is not possible, FSS will use an alternative 
EDI method allowing the Contractor to receive orders by facsimile 
transmission. Subject to the Contractor's agreement, other agencies may 
place orders by EDI.
    (d) When computer-to-computer EDI procedures will be used to place 
orders, the Contractor shall enter into one or more Trading Partner 
Agreements (TPA) with each Federal agency placing orders electronically 
in order to ensure mutual understanding by the parties of certain 
electronic transaction conventions and to recognize the rights and 
responsibilities of the parties as they apply to this method of placing 
orders. The TPA must identify, among other things, the third party 
provider(s) through which electronic orders are placed, the transaction 
sets used, security procedures, and guidelines for implementation. 
Federal agencies may obtain a sample format to customize as needed from 
the office specified in (g) below.
    (e) The Contractor shall be responsible for providing its own 
hardware and software necessary to transmit and receive data 
electronically. Additionally, each party to the TPA shall be responsible 
for the costs associated with its use of third party provider services.
    (f) Nothing in the TPA will invalidate any part of this contract 
between the Contractor and the General Services Administration. All 
terms and conditions of this contract that otherwise would be applicable 
to a mailed order shall apply to the electronic order.
    (g) The basic content and format of the TPA will be provided by:
    General Services Administration, Acquisition Operations and 
Electronic Commerce Center (FCS), Washington, DC 20406
    Telephone: [Contracting officer insert appropriate telephone 
numbers]
    FAX:

                             (End of clause)

    Alternate I (SEP 1999). As prescribed in 516.506, substitute the 
following paragraphs (a), (b), (c), and (d) for paragraphs (a), (b), 
(c), and (d) of the basic clause:

    (a) All delivery orders (orders) under this contract will be placed 
by the General Services Administration's Federal Supply Service (FSS). 
The Contractor is not authorized to accept orders from any other agency. 
Violation of this restriction may result in termination of the contract 
pursuant to the default clause of this contract.
    (b) All orders shall be placed by Electronic Data Interchange (EDI) 
using the American National Standards Institute (ANSI) X12 Standard for 
Electronic Data Interchange (EDI) format.
    (c) If the Contractor agrees, transmission will be computer-to-
computer EDI. If computer-to-computer EDI is not possible, FSS will use 
an alternative EDI method allowing the Contractor to receive orders by 
facsimile transmission.
    (d) When computer-to-computer EDI procedures will be used to place 
orders, the Contractor shall enter into a Trading Partner Agreement 
(TPA) with FSS in order to ensure mutual understanding by the parties of 
certain electronic transaction conventions and to recognize the rights 
and responsibilities of the parties as they apply to this method of 
placing orders. The TPA must identify among other things, the third 
party provider(s) through which electronic orders are placed, the 
transaction sets used, security procedures, and guidelines for 
implementation.

    Alternate II (SEP 1999). As prescribed in 516.506(b), substitute the 
following paragraph (a) for paragraph (a) of the basic clause:

    (a) The organizations listed below may place orders under this 
contract. Questions regarding organizations authorized to use this 
schedule should be directed to the Contracting Officer.
    (1) Executive agencies.
    (2) Other Federal agencies.
    (3) Mixed-ownership Government corporations.
    (4) The District of Columbia.
    (5) Government contractors authorized in writing by a Federal agency 
pursuant to 48 CFR 51.1.
    (6) Other activities and organizations authorized by statute or 
regulation to use GSA as a source of supply.

    Alternate III (MAY 2004). As prescribed in 516.506(c), substitute 
the following paragraphs (a), (c), and (d) for

[[Page 241]]

paragraphs (a), (c), and (d) of the basic clause:

    (a) See 552.238-78, Scope of Contract (Eligible Ordering 
Activities), for who may order under this contract.

                                * * * * *

    (c) If the Contractor agrees, GSA's Federal Supply Service (FSS) 
will place orders for eligible ordering activities, as defined in 
paragraph (a) of the clause at 552.238-78, by EDI using computer-to-
computer EDI. If computer-to-computer EDI is not possible, FSS will use 
an alternative EDI method allowing the Contractor to receive orders by 
facsimile transmission. Subject to the Contractor's agreement, other 
eligible ordering activities, as defined in paragraphs (a) and (d) of 
the clause at 552.238-78, may also place orders by EDI.
    (d) When computer-to-computer EDI procedures will be used to place 
orders, the Contractor shall enter into one or more Trading Partner 
Agreements (TPA) with each ordering activity placing orders 
electronically in order to ensure mutual understanding by the parties of 
certain electronic transaction conventions and to recognize the rights 
and responsibilities of the parties as they apply to this method of 
placing orders. The TPA must identify, among other things, the third 
party provider(s) through which electronic orders are placed, the 
transaction sets used, security procedures, and guidelines for 
implementation. Ordering activities may obtain a sample format to 
customize as needed from the office specified in paragraph (g) of this 
clause.
    Alternate IV (FEB 2007). As prescribed in 516.506(d), substitute the 
following paragraphs (a), (c), and (d) for paragraphs (a), (c), and (d) 
of the basic clause:

    (a) See 552.238-78, Scope of Contract (Eligible Ordering 
Activities)--Alternate I, for who may order under this contract.
    (c) If the Contractor agrees, GSA's Federal Acquisition Service 
(FAS) will place orders for eligible ordering activities, as defined in 
paragraph (a) of the clause at 552.238-78-Alternate I, by EDI using 
computer-to-computer EDI. If computer-to-computer EDI is not possible, 
FAS will use an alternative EDI method allowing the Contractor to 
receive orders by facsimile transmission. Subject to the Contractor's 
agreement, other eligible ordering activities, as defined in paragraphs 
(a) and (d) of the clause at 552.238-78-Alternate I, may also place 
orders by EDI.
    (d) When computer-to-computer EDI procedures will be used to place 
orders, the Contractor shall enter into one or more Trading Partner 
Agreements (TPA) with each ordering activity placing orders 
electronically in order to ensure mutual understanding by the parties of 
certain electronic transaction conventions and to recognize the rights 
and responsibilities of the parties as they apply to this method of 
placing orders. The TPA must identify, among other things, the third 
party provider(s) through which electronic orders are placed, the 
transaction sets used, security procedures, and guidelines for 
implementation. Ordering activities may obtain a sample format to 
customize as needed from the office specified in paragraph (g) of this 
clause.

[64 FR 37229, July 9, 1999, as amended at 68 FR 24380, May 7, 2003; 69 
FR 28065, May 18, 2004; 72 FR 4654, Feb. 1, 2007]



Sec. 552.216-73  Ordering Information.

    As prescribed in 516.506(e), insert the following provision:

                     Ordering Information (SEP 1999)

    (a) In accordance with the Placement of Orders clause of this 
solicitation, the offeror elects to receive orders placed by GSA's 
Federal Supply Service (FSS) by either [squ] facsimile transmission or 
[squ] computer-to-computer Electronic Data Interchange (EDI).
    (b) An offeror electing to receive computer-to-computer EDI is 
requested to indicate below the name, address, and telephone number of 
the representative to be contacted regarding establishment of an EDI 
interface.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    (c) An offeror electing to receive orders by facsimile transmission 
is requested to indicate below the telephone number(s) for facsimile 
transmission equipment where orders should be forwarded.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

    (d) For mailed orders, the offeror is requested to include the 
postal mailing address(es) where paper form orders should be mailed.

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

                           (End of provision)

    Alternate I (SEP 1999). As prescribed in 516.506(e), delete 
paragraph (d) of the basic provision.
    Alternate II (SEP 1999). As prescribed in 516.506(e), add paragraph 
(e) to the basic provision.

    (e) Offerors marketing through dealers are requested to indicate 
below whether those

[[Page 242]]

dealers will be participating in the proposed contract.

    Yes ( ) No ( )

    If ``yes'' is checked, ordering information to be inserted above 
shall reflect that in addition to offeror's name, address, and facsimile 
transmission telephone number, orders can be addressed to the offeror's 
name, c/o nearest local dealer. In this event, two copies of a list of 
participating dealers shall accompany this offer, and shall also be 
included in Contractor's Federal Supply Schedule pricelist.

[64 FR 37229, July 9, 1999, as amended at 72 FR 4654, Feb. 1, 2007]



Sec. 552.217-70  Evaluation of Options.

    As prescribed in 517.208(a), insert the following provision:

                    Evaluation of Options (AUG 1990)

    (a) The Government will evaluate offers for award purposes by 
determining the lowest base period price. When option year pricing is 
based on a formula (e.g., changes in the Producer Price Index or other 
common standard); option year pricing is automatically considered when 
evaluating the base year price, as any change in price will be uniformly 
related to changes in market conditions. All options are therefore 
considered to be evaluated. Evaluation of options will not obligate the 
Government to exercise the option(s).
    (b) The Government will reject the offer if exceptions are taken to 
the price provisions of the Economic Price Adjustment clause, unless the 
exception results in a lower maximum option year price. Such offers will 
be evaluated without regard to the lower option year(s) maximum. 
However, if the offeror offering a lower maximum is awarded a contract, 
the award will reflect the lower maximum.



Sec. 552.217-71  Notice Regarding Option(s).

    As prescribed in 517.208(b), insert the following provision:

                  Notice Regarding Option(s) (NOV 1992)

    The General Services Administration (GSA) has included an option to 
[Insert ``purchase additional quantities of supplies or services'' or 
``extend the term of this contract'' or ``purchase additional quantities 
of supplies or services and to extend the term of this contract''] in 
order to demonstrate the value it places on quality performance by 
providing a mechanism for continuing a contractual relationship with a 
successful Offeror that performs at a level which meets or exceeds GSA's 
quality performance expectations as communicated to the Contractor, in 
writing, by the Contracting Officer or designated representative. When 
deciding whether to exercise the option, the Contracting Officer will 
consider the quality of the Contractor's past performance under this 
contract in accordance with 48 CFR 517.207.

                           (End of provision)



Sec. 552.219-70  Allocation of Orders--Partially Set-Aside Items.

    As prescribed in 519.508, insert the following clause:

       Allocation of Orders--Partially Set-Aside Items (SEP 1999)

    Where the set-aside portion of an item or group of items is awarded 
to a Contractor other than the one receiving the award on the 
corresponding non-set-aside portion, the Government will divide the 
requirements to be ordered between the two Contractors with the 
objective of achieving, as nearly as possible, a 50/50 division of the 
total value of orders placed after the award of the set-aside portion. 
In no case will this division vary by more than a 60/40 division (with 
either the non-set-aside or set-aside Contractor receiving the larger 
portion) from the time of the award of the set-aside portion.

                             (End of clause)



Sec. 552.219-71  Notice to Offerors of Subcontracting Plan Requirements.

    As prescribed in 519.708-70(a), insert the following provision:

    Notice to Offerors of Subcontracting Plan Requirements (JUN 2005)

    The General Services Administration (GSA) is committed to assuring 
that maximum practicable opportunity is provided to small, HUBZone 
small, small disadvantaged, women-owned, veteran-owned, and service-
disabled veteran-owned small business concerns to participate in the 
performance of this contract consistent with its efficient performance. 
GSA expects any subcontracting plan submitted pursuant to FAR 52.219-9, 
Small Business Subcontracting Plan, to reflect this commitment. 
Consequently, an offeror, other than a small business concern, before 
being awarded a contract exceeding $500,000 ($1,000,000 for 
construction), must demonstrate that its subcontracting plan represents 
a creative and innovative program for involving small, HUBZone small, 
small disadvantaged, women-owned, veteran-owned, and service-disabled 
veteran-owned small business concerns as subcontractors in the 
performance of this contract.

[[Page 243]]

                           (End of provision)

[64 FR 37229, July 9, 1999, as amended at 70 FR 32522, 32523, June 3, 
2005]



Sec. 552.219-72  Preparation, Submission, and Negotiation of 

Subcontracting Plans.

    As prescribed in 519.708-70(b), insert the following provision:

 Preparation, Submission, and Negotiation of Subcontracting Plans (JUN 
                                  2005)

    (a) An offeror, other than a small business concern, submitting an 
offer that exceeds $500,000 ($1,000,000 for construction) shall submit a 
subcontracting plan with its initial offer. The subcontracting plan will 
be negotiated concurrently with price and any required technical and 
management proposals, unless the offeror submits a previously-approved 
commercial plan.
    (b) Maximum practicable utilization of small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran 
owned small business concerns as subcontractors is a matter of national 
interest with both social and economic benefits. The General Services 
Administration (GSA) expects that an offeror's subcontracting plan will 
reflect a commitment to assuring that small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran 
owned small business concerns are provided the maximum practicable 
opportunity, consistent with efficient contract performance, to 
participate as subcontractors in the performance of the resulting 
contract. An offeror submitting a commercial plan can reflect this 
commitment through subcontracting opportunities it provides that relate 
to the offeror's production generally; i.e., for both its commercial and 
Government business.
    (c) GSA believes that this potential contract provides significant 
opportunities for the use of small, HUBZone small, small disadvantaged, 
women-owned, veteran-owned, and service-disabled veteran-owned small 
business concerns as subcontractors. Consequently, in addressing the 
eleven elements described at FAR 52.219-9(d) of the clause in this 
contract entitled Small Business Subcontracting Plan, the offeror shall:
    (1) Demonstrate that its subcontracting plan represents a creative 
and innovative program for involving small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran-
owned small business concerns in performing the contract.
    (2) Include a description of the offeror's subcontracting strategies 
used in any previous contracts, significant achievements, and how this 
plan will build upon those earlier achievements.
    (3) Demonstrate through its plan that it understands the small 
business subcontracting program's objectives and GSA's expectations, and 
it is committed to taking those actions necessary to meet these goals or 
objectives.
    (d) In determining the acceptability of any subcontracting plan, the 
Contracting Officer will take each of the following actions:
    (1) Review the plan to verify that the offeror demonstrates an 
understanding of the small business subcontracting program's objectives 
and GSA's expectations with respect to the program and has included all 
the information, goals, and assurances required by FAR 52.219-9.
    (2) Consider previous goals and achievements of contractors in the 
small industry.
    (3) Consider information and potential sources obtained from 
agencies administering national and local preference programs and other 
advocacy groups in evaluating whether the goals stated in the plan 
adequately reflect the anticipated potential for subcontracting to 
small, HUBZone small, small disadvantaged, women-owned, veteran-owned, 
and service-disabled veteran-owned small business concerns.
    (4) Review the offeror's description of its strategies, historical 
performance and significant achievements in placing subcontracts for the 
same or similar products or services with small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran-
owned small business concerns. The offeror's description can apply to 
commercial as well as previous Government contracts.
    (e) Failure to submit an acceptable subcontracting plan and/or 
correct deficiencies in a plan within the time specified by the 
Contracting Officer shall make the offeror ineligible for award.

                           (End of provision)

[64 FR 37229, July 9, 1999, as amended at 70 FR 32522, 32523, June 3, 
2005]



Sec. 552.219-73  Goals for Subcontracting Plan.

    As prescribed in 519.708-70(c), insert the following provision:

                Goals for Subcontracting Plan (JUN 2005)

    (a) Maximum practicable utilization of small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran-
owned small business concerns as subcontractors is a matter of national 
interest with both social and economic benefits.
    (1) The General Service Administration's (GSA's) commitment to 
ensuring that maximum practicable opportunity is provided to small, 
HUBZone small, small disdvantaged,

[[Page 244]]

women-owned, veteran-owned, and service-disabled veteran-owned small 
business concerns to participate as subcontractors in the performance of 
this contract, consistent with its efficient performance, must be 
reflected in the offeror's subcontracting plan submitted pursuant to the 
clause of this contract at FAR 52.219-9, Small Business Subcontracting 
Plan.
    (2) In addressing the eleven elements described at FAR 52.219-9(d), 
the offeror shall demonstrate that its subcontracting plan represents a 
creative and innovative program for involving small, HUBZone small, 
small disadvantaged, women-owned, veteran-owned, and service-disabled 
veteran owned small business concerns in performing this contract. An 
offeror submitting a commercial plan can demonstrate its commitment in 
providing maximum practicable opportunities through subcontracting 
opportunities it provides to small, HUBZone small, small disadvantaged, 
women-owned, veteran-owned, and service-disabled veteran owned small 
business concerns that relate to the offeror's production generally; 
i.e., for both its commercial and Government business.
    (3) The subcontracting plan shall include a description of the 
offeror's subcontracting strategies used in previous contracts and 
significant achievements, with an explanation of how this plan will 
build upon those earlier achievements. Additionally, the offeror shall 
demonstrate through its plan that it understands the small business 
subcontracting program's objectives, GSA's expectations, and is 
committed to taking those actions necessary to meet these goals or 
objectives.
    (b) GSA believes that this contract provides significant 
opportunities for the use of small, HUBZone small, small disadvantaged, 
women-owned, veteran-owned, and service-disabled veteran-owned small 
business concerns as subcontractors. Accordingly, it is anticipated that 
an acceptable subcontracting plan will contain at least the following 
goals:

Small Business.......................................      ---- percent.
HUBZone Small Business...............................      ---- percent.
Small Disadvantaged Business.........................      ---- percent.
Women-Owned Small Business...........................      ---- percent.
Veteran-Owned Small Business.........................      ---- percent.
Service-Disabled Veteran-Owned Small Business........      ---- percent.
 

    Note: Target goals are expressed as a percentage of planned 
subcontracting dollars.
    (c) In determining the acceptability of any subcontracting plan, the 
Contracting Officer will--
    (1) Review the plan to verify that the offeror has demonstrated an 
understanding of the small business subcontracting program's objectives 
and GSA's expectations with respect to the programs and has included all 
the information, goals, and assurances required by FAR 52.219-9;
    (2) Consider previous goals and achievements of contractors in the 
same industry;
    (3) Consider information and potential sources obtained from 
agencies administering national and local preference programs and other 
advocacy groups in evaluating whether the goals stated in the plan 
adequately reflect the anticipated potential for subcontracting to 
small, HUBZone small, small disadvantaged, women-owned, veteran-owned, 
and service-disabled veteran-owned small business concerns; and
    (4) Review the offeror's description of its strategies, historical 
performance and significant achievements in placing subcontracts for the 
same or similar products or services with small, HUBZone small, small 
disadvantaged, women-owned, veteran-owned, and service-disabled veteran-
owned small business concerns. The offeror's description can apply to 
commercial as well as previous Government contracts.
    (d) Failure to submit an acceptable subcontracting plan and/or 
correct deficiencies in a plan within the time specified by the 
Contracting Officer shall make the offeror ineligible for award.

                           (End of provision)

    Alternate I (SEP 1999). As prescribed in 519.708-70(c)(2), delete 
paragraph (b) of the basic provision and redesignate paragraphs (c) and 
(d) as paragraphs (b) and (c).

[64 FR 37229, July 9, 1999, as amended at 70 FR 32522, 32523, June 3, 
2005]



Sec. 552.219-74  Section 8(a) Direct Award.

    As prescribed in 519.870-8, insert the following clause:

                  Section 8(a) Direct Award (SEP 1999)

    (a) This contract is issued as a direct award between the 
contracting activity and the 8(a) Contractor pursuant to the Memorandum 
of Understanding between the Small Business Administration (SBA) and the 
General Services Administration. SBA retains the responsibility for 8(a) 
certifications, 8(a) eligibility determinations, and related issues, and 
will provide counseling and assistance to the 8(a) contractor under the 
8(a) program. The cognizant SBA district office is: [Complete at time of 
award]
    (b) The contracting activity is responsible for administering the 
contract and taking any action on behalf of the Government under the 
terms and conditions of the contract. However, the contracting activity 
shall give advance notice to SBA before it

[[Page 245]]

issues a final notice terminating performance, either in whole or in 
part, under the contract. The contracting activity shall also coordinate 
with SBA prior to processing any advance payments or novation 
agreements. The contracting activity may assign contract administration 
functions to a contract administration office.
    (c) The Contractor agrees:
    (1) To notify the Contracting Officer, simultaneous with its 
notification to SBA (as required by SBA's 8(a) regulations), when the 
owner or owners upon whom 8(a) eligibility is based plan to relinquish 
ownership or control of the concern. Consistent with 15 U.S.C. 
637(a)(21), transfer of ownership or control shall result in termination 
of the contract for convenience, unless SBA waives the requirement for 
termination prior to the actual relinquishing of ownership and control.
    (2) To the requirements of 52.219-14, Limitations on Subcontracting.

                             (End of clause)



Sec. 552.223-70  Hazardous Substances.

    As prescribed in 523.303(a), insert the following clause:

                     Hazardous Substances (MAY 1989)

    (a) If the packaged items to be delivered under this contract are of 
a hazardous substance and ordinarily are intended or considered to be 
for use as a household item, this contract is subject to the Federal 
Hazardous Materials Act, as amended (15 U.S.C. 1261-1276), implementing 
regulations thereof (16 CFR Chapter II), and Federal Standard No. 123, 
Marking for Shipment (Civil Agencies), issue in effect on the date of 
this solicitation.
    (b) The packaged items to be delivered under this contract are 
subject to the preparation of shipping documents, the preparation of 
items for transportation, shipping container construction, package 
making, package labeling, when required, shipper's certification of 
compliance, and transport vehicle placarding in accordance with Parts 
171 through 178 of 49 CFR and the Hazardous Materials Transportation 
Act.
    (c) The minimum packaging acceptable for packaging Department of 
Transportation regulated hazardous materials shall be those in 49 CFR 
173.

                             (End of clause)



Sec. 552.223-71  Nonconforming Hazardous Materials.

    As prescribed in 523.303(b), insert the following clause:

              Nonconforming Hazardous Materials (SEP 1999)

    (a) Nonconforming supplies that contain hazardous material or that 
may expose persons who handle or transport the supplies to hazardous 
material and which require replacement under the inspection and/or 
warranty clauses of this contract shall be reshipped to the Contractor 
at the Contractor's expense. The Contractor agrees to accept return of 
these nonconforming supplies and to pay all costs occasioned by their 
return.
    (b) ``Hazardous materials,'' as used in this clause, includes any 
material defined as hazardous under the latest version of Federal 
Standard No. 313 (including revisions adopted during the term of the 
contract).
    (c) If the Contractor fails to provide acceptable disposition 
instructions for the nonconforming supplies within 10 days from the date 
of the Government's request (or such longer period as may be agreed to 
between the Contracting Officer and the Contractor), or fails to accept 
return of the reshipped nonconforming supplies, such failure:
    (1) may be interpreted as a willful failure to perform,
    (2) may result in termination of the contract for default and
    (3) shall be considered by the Contracting Officer in determining 
the responsibility of the Contractor for any future award (see FAR 
9.104-3(b) and 9.406-2).
    (d) Pending final resolution of any dispute, the Contractor shall 
promptly comply with the decision of the Contracting Officer.

                             (End of clause)



Sec. 552.223-72  Hazardous Material Information.

    As prescribed in 523.370, insert the following provision:

                Hazardous Material Information (SEP 1999)

    Offeror shall indicate for each national stock number (NSN) the 
following information:

------------------------------------------------------------------------
                    DOT shipping   DOT hazard
       NSN              name         class         DOT label required
------------------------------------------------------------------------
                                               Yes [ ] No [ ]
                                               Yes [ ] No [ ]
                                               Yes [ ] No [ ]
------------------------------------------------------------------------

                           (End of provision)



Sec. 552.225-70  Notice of Procurement Restriction--Hand or Measuring 

Tools or Stainless Steel Flatware.

    As prescribed in 525.1101, insert the following clause:

[[Page 246]]

Notice of Procurement Restriction--Hand or Measuring Tools or Stainless 
                        Steel Flatware (SEP 1999)

    (a) Awards under this solicitation will only be made to offerors 
that will furnish hand or measuring tools or stainless steel flatware 
that are domestic end products. Pursuant to the requirements of the 
current Department of Defense Appropriations Act, GSA has determined, in 
accordance with Section 6-104.4 of the Armed Services Procurement 
Regulation (6/15/70)(32 CFR 6-104.4), that it is in the national 
interest to reject foreign products.
    As used in this clause, a ``domestic end product'' is--
    (1) Any hand or measuring tool, except for an electric or air-motor 
driven hand tool, or stainless steel flatware, wholly produced or 
manufactured, including all components, in the United States or its 
possessions; or
    (2) Any electric or air-motor driven hand tool if the cost of its 
components produced or manufactured in the United States exceeds 75 
percent of the cost of all its components.
    (b) Tool kits or sets, being procured under this solicitation, will 
not be considered domestic end products if any individual tool 
classified in FSC Group 51 or 52 and included in a tool kit or set is 
not a domestic end product as defined in paragraph (a) of this clause. 
The restrictions of this clause do not apply to individual hand or 
measuring tools that are contained in the tool kit or set but are not 
classified in FSC Group 51 or 52.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 65 FR 41379, July 5, 2000]



Sec. 552.227-70  Government Rights (Unlimited).

    As prescribed in 527.409, insert the following clause:

                Government Rights (Unlimited) (MAY 1989)

    The Government shall have unlimited rights in all drawings, designs, 
specifications, notes and other works developed in the performance of 
this contract, including the right to use same on any other Government 
design or construction without additional compensation to the 
Contractor. The Contractor hereby grants to the Government a paid-up 
license throughout the world to all such works to which he may assert or 
establish any claim under design patent or copyright laws. The 
Contractor for a period of three years after completion of the project 
agrees to furnish the original or copies of all such works on the 
request of the Contracting Officer.

                             (End of clause)



Sec. 552.227-71  Drawings and Other Data To Become Property of 

Government.

    As prescribed in 527.409(b), substitute the following clause:

   Drawings and Other Data To Become Property of Government (MAY 1989)

    All designs, drawings, specifications, notes and other works 
developed in the performance of this contract shall become the sole 
property of the Government and may be used on any other design or 
construction without additional compensation to the Contractor. The 
Government shall be considered the ``person for whom the work was 
prepared'' for the purpose of authorship in any copyrightable work under 
Section 201(b) of Title 17, United States Code. With respect thereto, 
the Contractor agrees not to assert or authorize others to assert any 
rights nor establish any claim under the design patent or copyright 
laws. The Contractor for a period of three years after completion of the 
project agrees to furnish all retained works on the request of the 
Contracting Officer. Unless otherwise provided in this contract, the 
Contractor shall have the right to retain copies of works beyond such 
period.

                             (End of clause)



Sec. 552.228-70  Workers' Compensation Laws.

    As prescribed in 528.310(a), insert the following clause:

                  Workers' Compensation Laws (SEP 1999)

    The Act of June 25, 1936, 49 Stat. 1938 (40 U.S.C. 290) authorizes 
the constituted authority of the several States to apply their workers' 
compensation laws to all lands and premises owned or held by the United 
States.

                             (End of clause)



Sec. 552.229-70  Federal, State, and Local Taxes.

    As prescribed in 529.401-70, insert the following clause:

               Federal, State, and Local Taxes (APR 1984)

    The contract price includes all applicable Federal, State, and local 
taxes. No adjustment will be made to cover taxes which may subsequently 
be imposed on this transaction or changes in the rates of currently 
applicable taxes. However, the Government will, upon the request of the 
Contractor, furnish evidence appropriate to establish exemption from any 
tax from which the Government is

[[Page 247]]

exempt and which was not included in the contract price.

                             (End of clause)



Sec. 552.229-71  Federal Excise Tax--DC Government.

    As prescribed in 529.401-71, insert the following clause:

              Federal Excise Tax--DC Government (SEP 1999)

    If the District of Columbia cites an Internal Revenue Tax Exempt 
Certificate Number on orders placed under this contract, the Contractor 
shall bill shipments to the District of Columbia at prices exclusive of 
Federal excise tax and show the amount of such tax on the invoice.

                             (End of clause)



Sec. 552.232-1  Payments.

    As prescribed in 532.7104, insert the following clause:

              Payments (APR 1984) (Deviation FAR 52.232-1)

    (a) The Government shall pay the Contractor, without submission of 
invoices or vouchers, 30 days after the service period, the prices 
stipulated in this contract for supplies delivered and accepted or 
services rendered and accepted, less any deductions provided in this 
contract.
    (b) Unless otherwise specified in this contract, the Government will 
make payment on partial deliveries accepted by the Government if either:
    (1) The amount due on the deliveries warrants it.
    (2) The Contractor requests it and the amount due on the deliveries 
is at least $1,000 or 50 percent of the total contract price.
    (c) When processing payment, GSA's Finance Office will automatically 
generate the 12 digit invoice number using the ACT number assigned to 
the contract, followed by an abbreviated month and year of service 
(e.g., 84261554JUN7, for June 1997). The ACT number appears on the 
contract award document.

                             (End of clause)



Sec. 552.232-8  Discounts for Prompt Payment.

    As prescribed in 532.206, insert the following clause:

    Discounts for Prompt Payment (APR 1989) (Deviation FAR 52.232-8)

    (a) Discounts for early payment (hereinafter referred to as 
``discounts'' or ``the discount'') will be considered in evaluating the 
relationship of the offeror's concessions to the Government vis-a-vis 
the offeror's concessions to its commercial customers, but only to the 
extent indicated in this clause.
    (b) Discounts will not be considered to determine the low offeror in 
the situation described in the ``Offers on Identical Products'' 
provision of this solicitation.
    (c) Uneconomical discounts will not be considered as meeting the 
criteria for award established by the Government. In this connection, a 
discount will be considered uneconomical if the annualized rate of 
return for earning the discount is lower than the ``value of funds'' 
rate established by the Department of the Treasury and published 
quarterly in the Federal Register. The ``value of funds'' rate applied 
will be the rate in effect on the date specified for the receipt of 
offers.
    (d) Agencies required to use the resultant schedule will not apply 
the discount in determining the lowest delivered price pursuant to the 
FPMR, 41 CFR 101-26.408, if the agency determines that payment will 
probably not be made within the discount period offered. The same is 
true if the discount is considered uneconomical at the time of placement 
of the order.
    (e) Discounts for early payment may be offered either in the 
original offer or on individual invoices submitted under the resulting 
contract. Discounts offered will be taken by the Government if payment 
is made within the discount period specified.
    (f) Discounts that are included in offers become a part of the 
resulting contracts and are binding on the Contractor for all orders 
placed under the contract. Discounts offered only on individual invoices 
will be binding on the Contractor only for the particular invoice on 
which the discount is offered.
    (g) In connection with any discount offered for prompt payment, time 
shall be computed from the date of the invoice. For the purpose of 
computing the discount earned, payment shall be considered to have been 
made on the date which appears on the payment check or the date on which 
an electronic funds transfer was made.

                             (End of clause)

    Alternate I (MAY 2003). As prescribed in 532.206(a), remove 
paragraph (d) and redesignate paragraphs (e), (f), and (g) as (d), (e), 
and (f), respectively.

[64 FR 37229, July 9, 1999, as amended at 68 FR 24380, May 7, 2003]



Sec. 552.232-23  Assignment of Claims.

    As prescribed in 532.806, insert the following clause:

[[Page 248]]

                     Assignment of Claims (SEP 1999)

    Because this is a requirements or indefinite quantity contract under 
which more than one agency may place orders, paragraph (a) of the 
Assignment of Claims clause (FAR 52.232-23) is inapplicable and the 
following is substituted therefor:
    In order to prevent confusion and delay in making payment, the 
Contractor shall not assign any claim(s) for amounts due or to become 
due under this contract. However, the Contractor is permitted to assign 
separately to a bank, trust company, or other financial institution, 
including any Federal lending agency, under the provisions of the 
Assignment of Claims Act, as amended, 31 U.S.C. 3727, 41 U.S.C. 15 
(hereinafter referred to as ``the Act''), all amounts due or to become 
due under any order amounting to $1,000 or more issued by any Government 
agency under this contract. Any such assignment takes effect only if and 
when the assignee files written notice of the assignment together with a 
true copy of the instrument of assignment with the contracting officer 
issuing the order and the finance office designated in the order to make 
payment. Unless otherwise stated in the order, payments to an assignee 
of any amounts due or to become due under any order assigned may, to the 
extent specified in the Act, be subject to reduction or set-off.

                             (End of clause)



Sec. 552.232-25  Prompt Payment.

    As prescribed in 532.908(a)(2), insert the following clause:

           Prompt Payment (JUL 1998) (Deviation FAR 52.232-25)

    Notwithstanding any other payment clause in this contract, the 
Government will make invoice payments and contract financing payments 
under the terms and conditions specified in this clause. Payment shall 
be considered as being made on the day a check is dated or the date of 
an electronic funds transfer. Definitions of pertinent terms are set 
forth in section 32.902 of the Federal Acquisition Regulation. All days 
referred to in this clause are calendar days, unless otherwise 
specified. (However, see subparagraph (a)(4) of this clause concerning 
payments due on Saturdays, Sundays, and legal holidays.)
    (a) Invoice payments. (1) The due date for making invoice payments 
by the designated payment office is:
    (i) For orders placed electronically by the General Services 
Administration (GSA) Federal Supply Service (FSS), and to be paid by GSA 
through electronic funds transfer (EFT), the later of the following two 
events:
    (A) The 10th day after the designated billing office receives a 
proper invoice from the Contractor. If the designated billing office 
fails to annotate the invoice with the date of receipt at the time of 
receipt, the invoice payment due date shall be the 10th day after the 
date of the Contractor's invoice; provided the Contractor submitted a 
proper invoice and no disagreement exists over quantity, quality, or 
Contractor compliance with contract requirements.
    (B) The 10th day after Government acceptance of supplies delivered 
or services performed by the Contractor.
    (ii) For all other orders, the later of the following two events:
    (A) The 30th day after the designated billing office receives a 
proper invoice from the Contractor. If the designated billing office 
fails to annotate the invoice with the date of receipt at the time of 
receipt, the invoice payment due date shall be the 30th day after the 
date ofthe Contractor's invoice; provided the Contractor submitted a 
proper invoice and no disagreement exists over quantity, quality, or 
Contractor compliance with contract requirements.
    (B) The 30th day after Government acceptance of supplies delivered 
or services performed by the Contractor.
    (iii) On a final invoice, if the payment amount is subject to 
contract settlement actions, acceptance occurs on the effective date of 
the contract settlement.
    (2) The General Services Administration will issue payment on the 
due date in (a)(1)(i) above if the Contractor complies with full cycle 
electronic commerce. Full cycle electronic commerce includes all the 
following elements:
    (i) The Contractor must receive and fulfill electronic data 
interchange (EDI) purchase orders (transaction set 850).
    (ii) The Contractor must generate and submit to the Government valid 
EDI invoices (transaction set 810) or submit invoices through the GSA 
Finance Center Internet-based invoice process. Internet-based invoices 
must be submitted using procedures provided by GSA.
    (iii) The Contractor's financial institution must receive and 
process, on behalf of the Contractor, EFT payments through the Automated 
Clearing House (ACH) system.
    (iv) The EDI transaction sets in (i) through (iii) above must adhere 
to implementation conventions provided by GSA.
    (3) If any of the conditions in(a)(2) above do not occur, the 10 day 
payment due dates in (a)(1) become 30 day payment due dates.
    (4) Certain food products and other payments.
    (i) Due dates on Contractor invoices for meat, meat food products, 
or fish; perishable agricultural commodities; and dairy products, edible 
fats or oils, and food products prepared from edible fats or oils are--
    (A) For meat or meat food products, as defined in section 2(a)(3) of 
the Packers and

[[Page 249]]

Stockyard Act of 1921 (7 U.S.C. 182 (3)), and as further defined in Pub. 
L. 98-181, including any edible fresh or frozen poultry meat, any 
perishable poultry meat food product, fresh eggs, an any perishable egg 
product, as close as possible to, but not later than, the 7th day after 
product delivery.
    (B) For fresh or frozen fish, as defined in section 204(3) of the 
Fish and Seafood Promotion Act of 1986 (16 U.S.C. 4003(3)), as close as 
possible to, but not later than, the 7th day after product delivery.
    (C) For perishable agricultural commodities, as defined in section 
1(4) of the Perishable Agricultural Commodities Act of 1930 (7 U.S.C. 
499a(4)), as close as possible to, but not later than, the 10th day 
after product delivery, unless another date is specified in the 
contract.
    (D) For daily products, as defined in section 111(e) of the Dairy 
Production Stabilization Act of 1983 (7 U.S.C. 4502(e)), edible fats or 
oils, and food products prepared from edible fats or oils, as close as 
possible to, but not later than, the 10th day after the date on which a 
proper invoice has been received. Liquid milk, cheese, certain processed 
cheese products, butter, yogurt, ice cream, mayonnaise, salad dressing, 
and other similar products, fall within this classification. Nothing in 
the Act limits this classification to refrigerated products. When 
questions arise regarding the proper classification of a specific 
product, prevailing industry practices will be followed in specifying a 
contract payment due date. The burden of proof that a classification of 
a specific product is, in fact, prevailing industry practice is upon the 
Contractor making the representation.
    (ii) If the contract does not require submission of an invoice for 
payment (e.g., periodic lease payments), the due date will be as 
specified in the contract.
    (5) Contractor's invoice. The Contractor shall prepare and submit 
invoices to the designated billing office specified in the contract. 
Notwithstanding paragraph (g) of the clause at FAR 52.212-4, Contract 
Terms and Conditions--Commercial Items, if the Contractor submits hard-
copy invoices, submit only an original invoice. No copies of the invoice 
are required. A proper invoice must include the items listed in 
subdivisions (a)(5)(i) through (a)(5)(viii) of this clause. If the 
invoice does not comply with these requirements, it shall be returned 
within 7 days after the date the designated billing office received the 
invoice (3 days for meat, meat food products, or fish; 5 days for 
perishable agricultural commodities, edible fats or oils, and food 
products prepared from edible fats or oils), with a statement of the 
reasons why it is not a proper invoice. Untimely notification will be 
taken into account in computing any interest penalty owed the Contractor 
in the manner described in subparagraph (a)(5) of this clause.
    (i) Name and address of the Contractor.
    (ii) Invoice date. (The Contractor is encouraged to date invoices as 
close as possible to the date of the mailing or transmission.)
    (iii) Contract number or other authorization for supplies delivered 
or services preformed (including order number and contract line item 
number).
    (iv) Description, quantity, unit of measure, unit price, an extended 
prices of supplies delivered or services performed.
    (v) Shipping and payment terms (e.g., shipment number and date of 
shipment, prompt payment discount terms). Bill of lading number and 
weight of shipment will be shown for shipments on Government bills or 
lading.
    (vi) Name and address of Contractor official to whom payment is to 
be sent (must be the same as that in the contract or in a proper notice 
of assignment).
    (vii) Name (where practicable), title, phone number, and mailing 
address of person to be notified in the event of a defective invoice.
    (viii) Any other information or documentation required by the 
contract (such as evidence of shipment).
    (ix) While not required, the Contractor is strongly encouraged to 
assign an identification number to each invoice.
    (6) Interest penalty. An interest penalty shall be paid 
automatically by the designated payment office, without request from the 
Contractor, if payment is not made by the due date and the conditions 
listed in subdivisions (a)(6)(i) through (a)(6)(iii) of this clause are 
met, if applicable. However, when the due date falls on a Saturday, 
Sunday, or legal holiday when Federal Government offices are closed and 
Government business is not expected to be conducted, payment may be made 
on the following business day without incurring a late payment interest 
penalty.
    (i) A proper invoice was received by the designated billing office.
    (ii) A receiving report or other Government documentation 
authorizing payment was processed, and there was no disagreement over 
quantity, quality, or Contractor compliance with any contract term or 
condition.
    (iii) In the case of a final invoice for any balance of funds due 
the Contractor for supplies delivered or services performed, the amount 
was not subject to further contract settlement actions between the 
Government and the Contractor.
    (7) Computing penalty amount. The interest penalty shall be at the 
rate established by the Secretary of the Treasury under section 12 of 
the Contract Disputes Act of 1978 (41 U.S.C. 611) that is in effect on 
the day after the due date, except where the interest penalty is 
prescribed by other governmental authority (e.g., tariffs). This rate is 
referred to as the ``Renegotiation Board Interest Rate,'' and it is 
published in the Federal

[[Page 250]]

Register semiannually on or about January 1 and July 1. The interest 
penalty shall accrue daily on the invoice principal payment amount 
approved by the Government until the payment date of such approved 
principal amount; and will be compounded in 30-day increments inclusive 
from the first day after the due date through the payment date. That is, 
interest accrued at the end of any 30-day period will be added to the 
approved invoice principal payment amount and will be subject to 
interest penalties if not paid in the succeeding 30-day period. If the 
designated billing office failed to notify the Contractor of a defective 
invoice within the periods prescribed in subparagraph (a)(5) of this 
clause, the due date on the corrected invoice will be adjusted by 
subtracting from such date the number of days taken beyond the 
prescribed notification of defects period. Any interest penalty owed the 
Contractor will be based on this adjusted due date. Adjustments will be 
made by the designated payment office for errors in calculating interest 
penalties.
    (i) For the sole purpose of computing an interest penalty that might 
be due the Contractor, Government acceptance shall be deemed to have 
occurred constructively on the 7th day (unless otherwise specified in 
this contract) after the Contractor delivered the supplies or performed 
the services in accordance with the terms and conditions of the 
contract, unless there is a disagreement over quantity, quality or 
Contractor compliance with a contract provision. In the event that 
actual acceptance occurs within the constructive acceptance period, the 
determination of an interest penalty shall be based on the actual date 
of acceptance. The constructive acceptance requirement does, not 
however, compel Government officials to accept supplies or services, 
perform contract administration functions, or make payment prior to 
fulfilling their responsibilities.
    (ii) The following periods of time will not be included in the 
determination of an interest penalty:
    (A) The period taken to notify the Contractor of defects in invoices 
submitted to the Government, but this may not exceed 7 days (3 days for 
meat, meat food products, or fish; 5 days for perishable agricultural 
commodities, dairy products, edible fats or oils, and food products 
prepared from edible fats or oils).
    (B) The period between the defects notice and resubmission of the 
corrected invoice by the Contractor.
    (C) For incorrect electronic funds transfer (EFT) information, in 
accordance with the EFT clause of this contract.
    (iii) Interest penalties will not continue to accrue after the 
filing of a claim for such penalties under the clause at 52.233-1, 
Disputes, or for more than 1 year. Interest penalties of less than $1 
need not be paid.
    (iv) Interest penalties are not required on payment delays due to 
disagreement between the Government and the Contractor over the payment 
amount or other issues involving contract compliance or on amounts 
temporarily withheld or retained in accordance with the terms of the 
contract. Claims involving disputes, and any interest that may be 
payable, will be resolved in accordance with the clause at 52.233-1, 
Disputes.
    (8) Prompt payment discounts. An interest penalty also shall be paid 
automatically by the designated payment office, without request from the 
Contractor, if a discount for prompt payment is taken improperly. The 
interest penalty will be calculated as described in subparagraph (a)(7) 
of this clause on the amount of discount taken for the period beginning 
with the first day after the end of the discount period through the date 
when the Contractor is paid.
    (9) Additional interest penalty.
    (i) If this contract was awarded on or October 1, 1989, a penalty 
amount, calculated in accordance with subdivision (a)(9)(iii) of this 
clause, shall be paid in addition to the interest penalty amount if the 
Contractor--
    (A) Is owed an interest penalty of $1 or more;
    (B) Is not paid the interest penalty within 10 days after the date 
the invoice amount is paid; and
    (C) Makes a written demand to the designated payment office for 
additional penalty payment, in accordance with subdivision (a)(9)(ii) of 
this clause, postmarked not later than 40 days after the invoice amount 
is paid.
    (ii)(A) Contractors shall support written demands for additional 
penalty payments with the following data. No additional data shall be 
required. Contractors shall--
    (1) Specifically assert that late payment interest is due under a 
specific invoice, and request payment of all overdue late payment 
interest penalty and such additional penalty as may be required;
    (2) Attach a copy of the invoice on which the unpaid late payment 
interest was due; and
    (3) State that payment of the principal has been received, including 
the date of receipt.
    (B) Demands must be postmarked on or before the 40th day after 
payment was made, except that--
    (1) If the postmark is illegible or nonexistent, the demand must 
have been received and annotated with the date of receipt by the 
designated payment office on or before the 40th day after payment was 
made; or
    (2) If the postmark is illegible or nonexistent and the designated 
payment office fails to make the required annotation, the demand's 
validity will be determined by the date the Contractor has placed on the 
demand; provided such date is no later than the 40th day after payment 
was made.

[[Page 251]]

    (iii)(A) The additional penalty shall be equal to 100 percent of any 
original late payment interest penalty, except--
    (1) The additional penalty shall not exceed $5,000;
    (2) The additional penalty shall never be less than $25; and
    (3) No additional penalty is owed if the amount of the underlying 
interest penalty is less than $1.
    (B) If the interest penalty ceases to accrue in accordance with the 
limits stated in subdivision (a)(5)(iii) of this clause, the amount of 
the additional penalty shall be calculated on the amount of interest 
penalty that would have accrued in the absence of these limits, subject 
to the overall limits on the additional penalty specified in subdivision 
(a)(7)(iii)(A) of this clause.
    (C) For determining the maximum and minimum additional penalties, 
the test shall be the interest penalty due on each separate payment made 
for each separate contract. The maximum and minimum additional penalty 
shall not be based upon individual invoices unless the invoices are paid 
separately. Where payments are consolidated for disbursing purposes, the 
maximum and minimum additional penalty determination shall be made 
separately for each contract therein.
    (D) The additional penalty does not apply to payments regulated by 
other Government regulations (e.g., payments under utility contracts 
subject to tariffs and regulation).
    (b) Contract financing payments. (1) Due dates for recurring 
financing payments. If this contract provides for contract financing, 
requests for payment shall be submitted to the designated billing office 
as specified in this contract or as directed by the Contracting Officer. 
Contract financing payments shall be made on the [insert day as 
prescribed by Agency head; if not prescribed, insert 30th day] day after 
receipt of a proper contract financing request by the designated billing 
office. In the event that an audit or other review of a specific 
financing request is required to ensure compliance with the terms and 
conditions of the contract, the designated payment office is not 
compelled to make payment by the due date specified.
    (2) Due dates for other contract financing. For advance payments, 
loans, or other arrangements that do not involve recurring submissions 
of contract financing requests, payment shall be in accordance with the 
corresponding contract terms or as directed by the Contracting Officer.
    (3) Interest penalty not applicable. Contract financing payments 
shall not be assessed an interest penalty for payment delays.
    (c) Fast payment procedure due dates. If this contract contains the 
clause at 52.213-1, Fast Payment Procedure, payments will be made within 
15 days after the date of receipt of the invoice.

                             (End of clause)



Sec. 552.232-70  Invoice Requirements.

    As prescribed in 532.111(a), insert the following clause:

                     Invoice Requirements (SEP 1999)

    (a) Invoices shall be submitted in an original only, unless 
otherwise specified, to the designated billing office specified in this 
contract or order.
    (b) Invoices must include the Accounting Control Transaction (ACT) 
number provided below or on the order.

             ACT Number (Contracting Officer insert number)

    (c) In addition to the requirements for a proper invoice specified 
in the Prompt Payment clause on this contract or order, the following 
information or documentation must be submitted with each invoice:

           (Contracting Officer list additional requirements.)

                             (End of clause)



Sec. 552.232-71  Adjusting Payments.

    As prescribed in 532.111(b), insert the following clause:

                      Adjusting Payments (SEP 1999)

    (a) Under the Inspection of Services clause of this contract, 
payments may be adjusted if any services do not conform with contract 
requirements. The Contracting Office or a designated representative will 
inform the Contractor, in writing, of the type and dollar amount of 
proposed deductions by the 10th workday of the month following the 
performance period for which the deductions are to be made.
    (b) The Contractor may, within 10 working days of receipt of the 
notification of the proposed deductions, present to the Contracting 
Officer specific reasons why any or all of the proposed deductions are 
not justified. Reasons must be solidly based and must provide specific 
facts that justify reconsideration and/or adjustment of the amount to be 
deducted. Failure to respond within the 10-day period will be 
interpreted to mean that the Contractor accepts the deductions proposed.
    (c) All or a portion of the final payment may be delayed or withheld 
until the Contracting Officer makes a final decision on the proposed 
deduction. If the Contracting

[[Page 252]]

Officer determines that any or all of the proposed deductions are 
warranted, the Contracting Officer shall so notify the Contractor, and 
adjust payments under the contract accordingly.

                             (End of clause)



Sec. 552.232-72  Final Payment.

    As prescribed in 532.111(c), insert the following clause:

                        Final Payment (SEP 1999)

    Before final payment is made, the Contractor shall furnish the 
Contracting Officer with a release of all claims against the Government 
relating to this contract, other than claims in stated amounts that are 
specifically excepted by the Contractor from the release. If the 
Contractor's claim to amounts payable under the contract has been 
assigned under Assignment of Claims Act of 1940, as amended (31 U.S. 
3727, 41 U.S.C. 15), a release may also be required of the assignee.

                             (End of clause)



Sec. 552.232-73  Availability of Funds.

    As prescribed in 532.705-1, insert the following clause:

                    Availability of Funds (SEP 1999)

    The authorization of performance of work under this contract during 
the initial contract period and any option or extension period(s) is 
contingent upon the appropriation of funds to procure this service. If 
the contract is awarded, extended, or option(s) exercised, the 
Government's obligation beyond the end of the fiscal year (September 
30), in which the award or extension is made or option(s) exercised, is 
contingent upon the availability of funds from which payment for the 
contract services can be made. No legal liability on the part of the 
Government for payment of any money beyond the end of the each fiscal 
year (September 30) shall arise unless or until funds are made available 
to the Contracting Officer for this procurement and written notice of 
such availability is given to the Contractor.

                             (End of clause)



Sec. 552.232-74  Invoice Payments.

    As prescribed in 532.908 (a)(1), insert the following clause:

                       Invoice Payments (SEP 1999)

    (a) The due date for making invoice payments by the designated 
payment office is:
    (1) For orders placed electronically by the General Services 
Administration (GSA) Federal Supply Service (FSS), and to be paid by GSA 
through electronic funds transfer (EFT), the later of the following two 
events:
    (i) The 10th day after the designated billing office receives a 
proper invoice from the Contractor. If the designated billing office 
fails to annotate the invoice with the date of receipt at the time of 
receipt, the invoice payment due date shall be the 10th day after the 
date of the Contractor's invoice; provided the Contractor submitted a 
proper invoice and no disagreement exists over quantity, quality, or 
Contractor compliance with contract requirements.
    (ii) The 10th day after Government acceptance of supplies delivered 
or services performed by the Contractor.
    (2) For all other orders, the later of the following two events:
    (i) The 30th day after the designated billing office receives a 
proper invoice from the Contractor. If the designated billing office 
fails to annotate the invoice with the date of receipt at the time of 
receipt, the invoice payment due date shall be the 30th day after the 
date of the Contractor's invoice; provided the Contractor submitted a 
proper invoice and on disagreement exists over quantity, quality, or 
Contractor compliance with contract requirements.
    (ii) The 30th day after Government acceptance of supplies delivered 
or services performed by the Contractor.
    (3) On a final invoice, if the payment amount is subject to contract 
settlement actions, acceptance occurs on the effective date of the 
contract settlement.
    (b) The General Services Administration will issue payment on the 
due date in (a)(1) above if the Contractor complies with full cycle 
electronic commerce. Full cycle electronic commerce includes all the 
following elements:
    (1) The Contractor must receive and fulfill electronic data 
interchange (EDI) purchase orders (transaction set 850).
    (2) The Contractor must generate and submit to the Government valid 
EDI invoices (transaction set 810) of submit invoices through the GSA 
Finance Center Internet-based invoice process. Internet-based invoices 
must be submitted using procedures provided by GSA.
    (3) The Contractor's financial institution must receive and process, 
on behalf of the Contractor, EFT payments through the Automated Clearing 
House (ACH) system.
    (4) The EDI transaction sets in (b)(1) through (b)(3) above must 
adhere to implementation conventions provided by GSA.
    (c) If any of the conditions in (b) above do not occur, the 10-day 
payment due dates in (a)(1) become 30-day payment due dates.
    (d) Notwithstanding paragraph (g) of the clause at FAR 52.212-4, 
Contract Terms and Conditions--Commercial Items, if the Contractor 
submits hard-copy invoices, submit

[[Page 253]]

only an original invoice. No copies of the invoice are required.
    (e) All other provisions of the Prompt Payment Act (31 U.S.C. 3901 
et seq.) and Office of Management and Budget (OMB) Circular A-125, 
Prompt Payment, apply.

                             (End of clause)



Sec. 552.232-75  Prompt Payment

    As prescribed in 532.908 (b)(1), insert the following clause:

                        Prompt Payment (SEP 1999)

    The Government will make payments under the terms and conditions 
specified in this clause. Payment shall be considered as being made on 
the day a check is dated or an electronic funds transfer is made. All 
days referred to in this clause are calendar days, unless otherwise 
specified.
    (a) Payment due date.
    (1) Rental Payments. Rent shall be paid monthly in arrears and will 
be due on the first workday of each month, and only as provided for by 
the lease.
    (i) When the date for commencement of rent falls on the 15th day of 
the month or earlier, the initial monthly rental payment under this 
contract shall become due on the first workday of the month following 
the month in which the commencement of the rent is effective.
    (ii) When the date for commencement of rent falls after the 15th day 
of the month, the initial monthly rental payment under this contract 
shall become due on the first workday of the second month following the 
month in which the commencement of the rent is effective.
    (2) Other payments. The due date for making payments other than rent 
shall be the later of the following two events:
    (i) The 30th day after the designated billing office has received a 
proper invoice from the Contractor.
    (ii) The 30th day after Government acceptance of the work or 
service. However, if the designated billing office fails to annotate the 
invoice with the actual date of receipt, the invoice payment due date 
shall be deemed to be the 30th day after the Contractor's invoice is 
dated, provided a proper invoice is received and there is no 
disagreement over quantity, quality, or Contractor compliance with 
contract requirements.
    (b) Invoice and inspection requirements for payments other than 
rent.
    (1) The Contractor shall prepare and submit an invoice to the 
designated billing office after completion of the work. A proper invoice 
shall include the following items:
    (i) Names and address of the Contractor.
    (ii) Invoice date.
    (iii) Lease number.
    (iv) Government's order number or other authorization.
    (v) Description, price, and quantity of work or services delivered.
    (vi) Name and address of Contractor official to whom payment is to 
be sent (must be the same as that in the remittance address in the lease 
or the order).
    (vii) Name (where practicable), title, phone number, and mailing 
address of person to be notified in the event of a defective invoice.
    (2) The Government will inspect and determine the acceptability of 
the work performed or services delivered within 7 days after the receipt 
of a proper invoice or notification of completion of the work or 
services unless a different period is specified at the time the order is 
placed. If actual acceptance occurs later, for the purpose of 
determining the payment due date and calculation of interest, acceptance 
will be deemed to occur on the last day of the 7 day inspection period. 
If the work or service is rejected for failure to conform to the 
technical requirements of the contract, the 7 days will be counted 
beginning with receipt of a new invoice or notification. In either case, 
the Contractor is not entitled to any payment or interest unless actual 
acceptance by the Government occurs.
    (c) Interest Penalty. (1) An interest penalty shall be paid 
automatically by the Government, without request from the Contractor, if 
payment is not made by the due date.
    (2) The interest penalty shall be at the rate established by the 
Secretary of the Treasury under Section 12 of the Contract Disputes Act 
of 1978 (41 U.S.C. 611) that is in effect on the day after the due date. 
This rate is referred to as the ``Renegotiation Board Interest Rate,'' 
and it is published in the Federal Register semiannually on or about 
January 1 and July 1. The interest penalty shall accrue daily on the 
payment amount approved by the Government and be compounded in 30-day 
increments inclusive from the first day after the due date through the 
payment date.
    (3) Interest penalties will not continue to accrue after the filing 
of a claim for such penalties under the clause at 52.233-1, Disputes, or 
for more than 1 year. Interest rates penalties of less than $1.00 need 
not be paid.
    (4) Interest penalties are not required on payment delays due to 
disagreement between the Government and Contractor over the payment 
amount or other issues involving contract compliance or on amounts 
temporarily withheld or retained in accordance with the terms of the 
contract. Claims involving disputes, and any interest that may be 
payable, will be resolved in accordance with the clause at 52.233-1, 
Disputes.

                             (End of clause)

    Alternate I (SEP 1999). If Alternate I is used, subparagraph (a)(1) 
of the basic

[[Page 254]]

clause should be designated as paragraph (a) and subparagraph (a)(2) and 
paragraph (b) should be deleted. Paragraph (c) of the basic clause 
should be redesignated (b).



Sec. 552.232-76  Electronic Funds Transfer Payment.

    As prescribed in 532.908(b)(2), insert the following clause:

              Electronic Funds Transfer Payment (MAR 2000)

    (a) The Government will make payments under this lease by electronic 
funds transfer (EFT). The Lessor must, no later than 30 days before the 
first payment:
    (1) Designate a financial institution for receipt of EFT payments.
    (2) Submit this designation to the Contracting Officer or other 
Government official, as directed.
    (b) The Lessor must provide the following information:
    (1) The American Bankers Association 9-digit identifying number for 
Automated Clearing House (ACH) transfers of the financing institution 
receiving payment if the institution has access to the Federal Reserve 
Communications System.
    (2) Number of account to which funds are to be deposited.
    (3) Type of depositor account (``C'' for checking, ``S'' for 
savings).
    (4) If the Lessor is a new enrollee to the EFT system, the Lessor 
must complete and submit a ``Payment Information Form,'' SF 3881, before 
payment can be processed.
    (c) If the Lessor, during the performance of this contract, elects 
to designate a different financial institution for the receipt of any 
payment, the appropriate Government official must receive notice of such 
change and the required information specified above no later than 30 
days before the date such change is to become effective.
    (d) The documents furnishing the information required in this clause 
must be dated and contain the:
    (1) Signature, title, and telephone number of the Lessor or the 
Lessor's authorized representative.
    (2) Lessor's name.
    (3) Lease number.
    (e) Lessor's failure to properly designate a financial institution 
or to provide appropriate payee bank account information may delay 
payments of amounts otherwise properly due.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 65 FR 11248, Mar. 2, 2000]



Sec. 552.232-77  Payment By Governmentwide Commercial Purchase Card.

      Payment By Governmentwide Commercial Purchase Card (MAR 2000)

    (a) Definitions. ``Governmentwide commercial purchase card'' means a 
uniquely numbered credit card issued by a contractor under GSA's 
Governmentwide Contract for Fleet, Travel, and purchase Card Services to 
named individual Government employees or entities to pay for official 
Government purchases.
    ``Oral order'' means an order placed orally either in person or by 
telephone.
    (b) At the option of the Government and if agreeable to the 
Contractor, payments of ------*-- or less for oral or written orders may 
be made using the Governmentwide commercial purchase card.
    (c) The Contractor shall not process a transaction for payment 
through the credit card clearinghouse until the purchased supplies have 
been shipped or services performed. Unless the cardholder requests 
correction or replacement of a defective or faulty item under other 
contract requirements, the Contractor must immediately credit a 
cardholder's account for items returned as defective or faulty.
    (d) Payments made using the Governmentwide commercial purchase card 
are not eligible for any negotiated prompt payment discount. Payment 
made using a Government debit card will receive the applicable prompt 
payment discount.

                             (End of clause)

    * Enter amount not to exceed $100,000.
    Alternate I (MAR 2000). For FSS schedule solicitations and 
contracts, replace paragraph (b) of the basic clause and add paragraph 
(c) as follows. Redesignate paragraphs (c) and (d) of the basic clause 
as (d) and (e) respectively.

    (b) The Contractor must accept the Governmentwide commercial 
purchase card for payments equal to or less than the micro-purchase 
threshold (see Federal Acquisition Regulation 2.101) for oral or written 
orders under this contract.
    (c) The Contractor and the ordering agency may agree to use the 
Governmentwide commercial purchase card for dollar amounts over the 
micro-purchase threshold, and the Government encourages the Contractor 
to accept payment by the purchase card. The dollar value of a purchase 
card action must not exceed the ordering agency's established limit. If 
the Contractor will not accept payment by the purchase card for an order 
exceeding the micro-purchase threshold, the

[[Page 255]]

Contractor must so advise the ordering agency within 24 hours of receipt 
of the order.

[65 FR 11248, Mar. 2, 2000]



Sec. 552.232-78  Payment Information.

    As prescribed in 532.908(c), insert the following information.

                     Payment Information (JUN 2000)

    The General Services Administration (GSA) makes information on 
contract payments available electronically at http://
www.finance.gsa.gov. The Contractor may register at the site and review 
its record of payments. This site provides information only on payments 
made by GSA, not by other agencies.

                             (End of clause)

[65 FR 41379, July 5, 2000]



Sec. 552.232-79  Payment by Credit Card.

    As prescribed in 532.7003(c) insert the following clause:

                    Payment By Credit Card (MAY 2003)

    (a) Definitions.
    Credit card means any credit card used to pay for purchases, 
including the Governmentwide Commercial Purchase Card.
    Governmentwide commercial purchase card means a uniquely numbered 
credit card issued by a Contractor under GSA's Governmentwide Contract 
for Fleet, Travel, and Purchase Card Services to named individual 
Government employees or entities to pay for official Government 
purchases.
    Oral order means an order placed orally either in person or by 
telephone.
    (b) The Contractor must accept the credit card for payments equal to 
or less than the micro-purchase threshold (see Federal Acquisition 
Regulation 2.101) for oral or written orders under this contract.
    (c) The Contractor and the ordering agency may agree to use the 
credit card for dollar amounts over the micro-purchase threshold, and 
the Government encourages the Contractor to accept payment by the 
purchase card. The dollar value of a purchase card action must not 
exceed the ordering agency's established limit. If the Contractor will 
not accept payment by the purchase card for an order exceeding the 
micro-purchase threshold, the Contractor must so advise the ordering 
agency within 24 hours of receipt of the order.
    (d) The Contractor shall not process a transaction for payment 
through the credit card clearinghouse until the purchased supplies have 
been shipped or services performed.
    Unless the cardholder requests correction or replacement of a 
defective or faulty item under other contract requirements, the 
Contractor must immediately credit a cardholder's account for items 
returned as defective or faulty.
    (e) Payments made using the Governmentwide commercial purchase card 
are not eligible for any negotiated prompt payment discount. Payment 
made using an ordering activity debit card will receive the applicable 
prompt payment discount.

                             (End of clause)

[68 FR 24380, May 7, 2003]



Sec. 552.232-81  Payments by Non-Federal Ordering Activities.

    As prescribed in 532.206(b), insert the following clause:

         Payments By Non-Federal Ordering Activities (MAY 2003)

    If eligible non-federal ordering activities are subject to a State 
prompt payment law, the terms and conditions of the applicable State law 
apply to the orders placed under this contract by such activities. If 
eligible non-federal ordering activities are not subject to a State 
prompt payment law, the terms and conditions of the Federal Prompt 
Payment Act as reflected in Federal Acquisition Regulation clause 
52.232-25, Prompt Payment, or 52.212-4, Contract Terms and Conditions--
Commercial Items, apply to such activities in the same manner as to 
Federal ordering activities.

                             (End of clause)

[68 FR 24380, May 7, 2003]



Sec. 552.232-82  Contractor's Remittance (Payment) Address.

    As prescribed in 532.206(c), insert the following provision:

          Contractor's Remittance (Payment) Address (MAY 2003)

    (a) Payment by electronic funds transfer (EFT) is the preferred 
method of payment. However, under certain conditions, the ordering 
activity may elect to make payment by check. The offeror shall indicate 
below the payment address to which checks should be mailed for payment 
of proper invoices submitted under a resultant contract.

 Payment Address:_______________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________


[[Page 256]]

________________________________________________________________________
    (b) Offeror shall furnish by attachment to this solicitation, the 
remittance (payment) addresses of all authorized participating dealers 
receiving orders and accepting payment by check in the name of the 
Contractor in care of the dealer, if different from their ordering 
address(es) specified elsewhere in this solicitation. If a dealer's 
ordering and remittance address differ, both must be furnished and 
identified as such.
    (c) All offerors are cautioned that if the remittance (payment) 
address shown on an actual invoice differs from that shown in paragraph 
(b) of this provision or on the attachment, the remittance address(es) 
in paragraph (b) of this provision or attached will govern. Payment to 
any other address, except as provided for through EFT payment methods, 
will require an administrative change to the contract.

    Note: All orders placed against a Federal Supply Schedule contract 
are to be paid by the individual ordering activity placing the order. 
Each order will cite the appropriate ordering activity payment address, 
and proper invoices should be sent to that address. Proper invoices 
should be sent to GSA only for orders placed by GSA. Any other ordering 
activity's invoices sent to GSA will only delay your payment.

                           (End of provision)

[68 FR 24380, May 7, 2003]



Sec. 552.232-83  Contractor's Billing Responsibilities.

    As prescribed in 532.206(d), insert the following clause:

            Contractor's Billing Responsibilities (MAY 2003)

    The Contractor is required to perform all billings made pursuant to 
this contract. However, if the Contractor has dealers that participate 
on the contract and the billing/payment process by the Contractor for 
sales made by the dealer is a significant administrative burden, the 
following alternative procedures may be used. Where dealers are allowed 
by the Contractor to bill ordering activities and accept payment in the 
Contractor's name, the Contractor agrees to obtain from all dealers 
participating in the performance of the contract a written agreement, 
which will require dealers to--
    (1) Comply with the same terms and conditions regarding prices as 
the Contractor for sales made under the contract;
    (2) Maintain a system of reporting sales under the contract to the 
manufacturer, which includes--
    (i) The date of sale;
    (ii) The ordering activity to which the sale was made;
    (iii) The service or product/model sold;
    (iv) The quantity of each service or product/model sold;
    (v) The price at which it was sold, including discounts; and
    (vi) All other significant sales data.
    (3) Be subject to audit by the Government, with respect to sales 
made under the contract; and
    (4) Place orders and accept payments in the name of the Contractor 
in care of the dealer.
    An agreement between a Contractor and its dealers pursuant to this 
procedure will not establish privity of contract between dealers and the 
Government.

                             (End of clause)

[68 FR 24380, May 7, 2003]



Sec. 552.233-70  Protests Filed Directly With the General Services 

Administration.

    As prescribed in 533.103-72, insert the following provisions:

 Protests Filed Directly With the General Services Administration (MAR 
                                  2000)

    (a) The following definitions apply in this provision:
    ``Agency Protest Official for GSA'' means the official in the Office 
of Acquisition Policy designated to review ad decide procurement 
protests filed with GSA.
    ``Deciding official'' means the person chosen by the protester to 
decide the agency protest. The deciding official may be either the 
Contracting Officer or the Agency Protest Official.
    (b) The filing time frames in FAR 33.103(e) apply. An agency protest 
is filed when the protest complaint is received at the location the 
solicitation designates for serving protests. GSA's hours of operation 
are 8:00 a.m. to 4:30 p.m. Protests delivered after 4:30 p.m. will be 
considered received and filed the following business day.
    (c) A protest filed directly with the General Services 
Administration (GSA) must:
    (1) Indicate that it is a protest to the agency.
    (2) Be filed with the Contracting Officer.
    (3) State whether the protester chooses to have the Contracting 
Officer or the Agency Protest Official for GSA decide the protest. If 
the protest is silent on this matter, the Contracting Officer will 
decide the protest.
    (4) Indicate whether the protester prefers to make an oral 
presentation, a written presentation, or an oral presentation confirmed 
in writing, of arguments in support of the protest to the deciding 
official.
    (5) Include the information required by FAR 33.103(d)(2):

[[Page 257]]

    (i) Name, address, fax number, and telephone number of the 
protester.
    (ii) Solicitation or contract number.
    (iii) Detailed statement of the legal and factual grounds for the 
protest, to include a description of resulting prejudice to the 
protester.
    (iv) Copies of relevant documents.
    (v) Request for a ruling by the agency.
    (vi) Statement as to the form of relief requested.
    (vii) All information establishing that the protester is an 
interested party for the purpose of filing a protest.
    (viii) All information establishing the timeliness of the protest 
(see paragraph (b) of this provision).
    (d) An interested party filing a protest with GSA has the choice of 
requesting either that the Contracting Officer or the Agency Protest 
Official for GSA decide the protest.
    (e) The decision by the Agency Protest Official for GSA is an 
alternative to a decision by the Contracting Officer. The Agency Protest 
Official for GSA will not consider appeals from the Contracting 
Officer's decision on an agency protest.
    (f) The deciding Official must conduct a scheduling conference with 
the protester within three (3) days after the protest is filed. The 
scheduling conference will establish deadlines for oral or written 
arguments in support of the agency protest and for agency officials to 
present information in response to the protest issues. The deciding 
official may hear oral arguments in support of the agency protest at the 
same time as the scheduling conference, depending on availability of the 
necessary parties.
    (g) Oral conferences may take place either by telephone or in 
person. Other parties (e.g., representatives of the program office) may 
attend at the discretion of the deciding official.
    (h) The following procedures apply to information submitted in 
support of or in response to an agency protest:
    (1) The protester and the agency have only one opportunity to 
support or explain the substance of the protest (either orally, in 
writing, or orally confirmed in writing).
    (2) GSA procedures do not provide for any discovery.
    (3) The deciding official has discretion to request additional 
information from either the agency or the protester. However, the 
deciding official will normally decide protests on the basis of 
information provided by the protester and the agency.
    (4) Except as provided in paragraph (5)(ii) below, the parties are 
encouraged, but not required, to exchange information submitted to the 
Agency Protest Official for GSA.
    (5) If the agency makes a written response to the protest, the 
following filling requirements apply unless the deciding official 
approves other arrangements:
    (i) The agency must file its response to the protest with the 
deciding official within five (5) days after the filing of the protest.
    (ii) The agency must also provide the protester with a copy of the 
response on the same day it files the response with the deciding 
official. If the agency believes it needs to redact or withhold any 
information in the response from the protester, it must obtain the 
approval of the deciding official.
    (i) The deciding official will resolve the protest through informal 
presentations or meetings to the maximum extent practicable.
    (j) An interested party may represent itself or be represented by 
legal counsel. GSA will not reimburse the party for any legal fees 
related to the agency protest.
    (k) GSA will stay award or suspend contract performance in 
accordance with FAR 33.103(f). The stay or suspension, unless over-
ridden, remains in effect until the protest is decided, dismissed, or 
withdrawn.
    (l) The deciding official will make a best effort to issue a 
decision on the protest within twenty-eight (28) days after the filing 
date. The decision may be oral or written. If the decision is 
communicated orally to the protester, the deciding official will confirm 
in writing within three (3) days after the decision.
    (m) GSA may dismiss or stay proceedings on an agency protest if a 
protest on the same or similar basis is filed with a protest forum 
outside of GSA.

                           (End of provision)

[64 FR 37229, July 9, 1999, as amended at 65 FR 11248, Mar. 2, 2000]



Sec. 552.233-71  Disputes (Utility Contracts).

    As prescribed in 533.215, insert the following clause:

                 Disputes (Utility Contracts) (JAN 2005)

    The requirements of the Disputes clause at FAR 52.233-1 are 
supplemented to provide that matters involving the interpretation of 
tariffed retail rates, tariff rate schedules, and tariffed terms 
provided under this contract are subject to the jurisdiction and 
regulation of the utility rate commission having jurisdiction.

                             (End of clause)

[70 FR 299, Jan. 4, 2005]



Sec. 552.236-70  Definitions.

    As prescribed in 536.570-1, insert the following clause:

[[Page 258]]

                         Definitions (APR 1984)

    The terms ``Administration'' and ``Service'' as used in this 
contract shall mean the General Services Administration (GSA) and the 
Public Buildings Service (PBS), respectively.

                             (End of clause)



Sec. 552.236-71  Authorities and Limitations.

    As prescribed in 536.570-2, insert the following clause:

                 Authorities and Limitations (APR 1984)

    (a) All work shall be performed under the general direction of the 
Contracting Officer, who alone shall have the power to bind the 
Government and to exercise the rights, responsibilities, authorities and 
functions vested in him by the contract documents, except that he shall 
have the right to designate authorized representatives to act for him. 
Wherever any provision in this contract specifies an individual (such 
as, but not limited to, Construction Engineer, Resident Engineer, 
Inspector or Custodian) or organization, whether governmental or 
private, to perform any act on behalf of or in the interests of the 
Government, that individual or organization shall be deemed to be the 
Contracting Officer's authorized representative under this contract but 
only to the extent so specified. The Contracting Officer may, at any 
time during the performance of this contract, vest in any such 
authorized representatives additional power and authority to act for him 
or designate additional representatives, specifying the extent of their 
authority to act for him; a copy of each document vesting additional 
authority in an authorized representative or designating an additional 
authorized representative shall be furnished to the Contractor.
    (b) The Contractor shall perform the contract in accordance with any 
order (including but not limited to instruction, direction, 
interpretation, or determination) issued by an authorized representative 
in accordance with his authority to act for the Contracting Officer; but 
the Contractor assumes all the risk and consequences of performing the 
contract in accordance with any order (including but not limited to 
instruction, direction, interpretation, or determination) of anyone not 
authorized to issue such order.

                             (End of clause)



Sec. 552.236-72  Specialist.

    As prescribed in 536.570-3, insert the following clause:

                          Specialist (APR 1984)

    The term ``Specialist,'' as used in the contract specification, 
shall mean an individual or firm of established reputation (or, if newly 
organized, whose personnel have previously established a reputation in 
the same field), which is regularly engaged in, and which maintains a 
regular force of workmen skilled in either (as applicable) manufacturing 
or fabricating items required by the contract, installing items required 
by the contract, or otherwise performing work required by the contract. 
Where the contract specification requires installation by a specialist, 
that term shall also be deemed to mean either the manufacturer of the 
item, an individual or firm licensed by the manufacturer, or an 
individual or firm who will perform the work under the manufacturer's 
direct supervision.

                             (End of clause)



Sec. 552.236-73  Basis of Award--Construction Contract.

    As prescribed in 536.570-4, insert the following provision or the 
appropriate Alternate:

            Basis of Award--Construction Contract (APR 1985)

    (a) The low bidder for purposes of award is the responsible bidder 
offering the lowest price for the base bid (consisting of the lump sum 
bid and any associated unit price bids extended by the applicable number 
of units shown on the bid form). See Standard Form 1442, Solicitation, 
Offer, and Award and the provision entitled ``Contract Award--Sealed 
Bidding.''
    (b) A bid may be rejected as nonresponsive if the bid is materially 
unbalanced as to bid prices. A bid is unbalanced when the bid is based 
on prices significantly less than cost for some work and significantly 
overstated for other work.

                           (End of provision)

    Alternate I (APR 1985). if the solicitation includes a base bid and 
options, the Contracting Officer shall delete paragraph (a) of the basic 
provision and insert paragraph (a) substantially as follows:

    (a) The low bidder for purposes of award is the responsible bidder 
offering the lowest aggregate price for (1) the base bid (consisting of 
the lump sum bid and any associated unit price bids extended by the 
applicable number of units shown on the bid form) plus (2) all

[[Page 259]]

options designated to be evaluated. The evaluation of options will not 
obligate the Government to exercise the options. See Standard Form 1442, 
Solicitation, Offer, and Award and the provision entitled ``Contract 
Award--Sealed Bidding.''
    Alternate II (APR 1985). If the solicitation includes a base bid and 
alternates, the Contracting Officer shall delete paragraph (a) of the 
basic provision and insert paragraphs (a), (c), and (d) substantially as 
follows:

    (a) The low bidder for purposes of award is the responsible bidder 
offering the lowest aggregate price for (1) the base bid (consisting of 
the lump sum bid and any associated unit price bids extended by the 
applicable number of units shown on the bid form) plus (2) those 
alternates in the order of priority listed in the solicitation that 
provide the most features of work within the funds available at bid 
opening. See the provision entitled ``Contract Award--Sealed Bidding.''
    (c) Alternates will be added to the base bid in the order listed in 
the solicitation (see Standard Form 1442, Solicitation, Offer, and 
Award). If the addition of an alternate would make all bids exceed the 
funds available at bid opening, that alternate shall be skipped and the 
next subsequent alternate in a lower amount shall be added, provided 
that the aggregate of base bid and the selected alternates do not exceed 
the funds available at bid opening. For example, when the amount 
available is $100,000 and a bidder's base bid is $85,000, with its 
separate bids on four successive alternatives being $10,000, $8,000, 
$6,000, and $4,000, the aggregate amount of the bid for purposes of 
selecting the alternates would be $99,000 (base bid plus the first and 
four alternates). The second and third alternates are skipped because 
each of them would cause the aggregate of the base bid and alternates to 
exceed the $100,000 amount available when considered with the first 
alternate. All bids shall be evaluated on the basis of the same 
alternates.
    (d) After the low bidder has been determined in accordance with 
paragraph (a), an award may be made to that low bidder on the base bid, 
plus any combination of alternates for which funds are available at the 
time of award, but only if the award amount does not exceed the amount 
offered by any other responsible bidder. If the base bid plus the 
proposed combination of alternates exceed the amount offered by any 
other responsible bidder for the same combination of alternates, the 
award cannot be made on that combination of alternates.

    Alternate III (APR 1985). If the solicitation includes a base bid, 
alternates, and options, the Contracting Officer shall delete paragraph 
(a) of the basic provision and insert paragraphs (a), (c), and (d) 
substantially as follows:

    (a) The low bidder for purposes of award is the responsible bidder 
offering the lowest aggregate price for (1) the base bid (consisting of 
the lump sum bid and any associated unit price bids extended by the 
applicable number of units shown on the bid form) plus (2) those 
alternates in the order of priority listed in the solicitation that 
provide the most features of work within the funds available at bid 
opening plus (3) all options designated to be evaluated except those 
options associated with alternates which are skipped during the 
selection process outlined in paragraph (c) below. The evaluation of 
options will not obligate the Government to exercise the options. See 
the provision entitled ``Contract Award--Sealed Bidding.''
    (c) Alternates will be added to the base bid in the order listed in 
the solicitation (see Standard Form 1442, Solicitation, Offer, or 
Award). If the addition of an alternate would make all bids exceed the 
funds available at bid opening, that alternate shall be skipped and the 
next subsequent alternate in a lower amount shall be added, provided 
that the aggregate of base bid and the selected alternates do not exceed 
the funds available at bid opening. For example, when the amount 
available is $100,000 and a bidder's base bid is $85,000, with its 
separate bids on four successive alternates being $10,000, $8,000, 
$6,000, and $4,000, the aggregate amount of the bid for purposes of 
selecting the alternates would be $99,000 (base bid plus the first and 
fourth alternates). The second and third alternates are skipped because 
each of them would cause the aggregate of the base bid and alternates to 
exceed the $100,000 amount available when considered with the first 
alternate. All bids shall be evaluated on the basis of the same 
alternates.
    (d) After the low bidder has been determined in accordance with 
paragraph (a), award may be made to that low bidder on the base bid and 
evaluated options plus any combination of alternates for which funds are 
available at the time of award, but only if that low bidder is still low 
on the sum thereof plus any previously unevaluated options designated to 
be evaluated which are associated with proposed alternates that were 
skipped during the selection under paragraph (c). If that low bidder is 
not still low, award cannot be made on the proposed combination of 
alternates.



Sec. 552.236-74  Working Hours.

    As prescribed in 536.570-5, insert the following clause:

                        Working Hours (APR 1984)

    (a) It is contemplated that all work will be performed during the 
customary working

[[Page 260]]

hours of the trades involved unless otherwise specified in this 
contract. Work performed by the Contractor at his own volition outside 
such customary working hours shall be at no additional expense to the 
Government.
    (b) Any requests received by the Contractor from occupants of 
existing buildings to change the hours of work shall be referred to the 
Contracting Officer for determination.

                             (End of clause)



Sec. 552.236-75  Use of Premises.

    As prescribed in 536.570-6, insert the following clause:

                       Use of Premises (APR 1984)

    (a) If the premises are occupied, the Contractor, his 
subcontractors, and their employees shall comply with the regulations 
governing access to, operation of, and conduct while in or on the 
premises and shall perform the work required under this contract in such 
a manner as not to unreasonably interrupt or interfere with the conduct 
of Government business.
    (b) Any request received by the Contractor from occupants of 
existing buildings to change the sequence of work shall be referred to 
the Contracting Officer for determination.
    (c) If the premises are occupied, the Contractor, his subcontractors 
and their employees shall not have access to or be admitted into any 
building outside the scope of this contract except with official 
permission.

                             (End of clause)



Sec. 552.236-76  Measurements.

    As prescribed in 536.570-7, insert the following clause:

                         Measurements (APR 1984)

    All dimensions shown of existing work and all dimensions required 
for work that is to connect with work now in place, shall be verified by 
the Contractor by actual measurement of the existing work. Any 
discrepancies between the contract requirements and the existing 
conditions shall be referred to the Contracting Officer before any work 
affected thereby has been performed.

                             (End of clause)



Sec. 552.236-77  Specifications and Drawings

    As prescribed in 536.570-8, insert the following clause:

                 Specifications and Drawings (SEP 1999)

    The requirements of the clause entitled ``Specifications and 
Drawings for Construction'' at FAR 52.236-21, are supplemented as 
follows:
    (a) In case of difference between small and large-scale drawings, 
the large-scale drawings shall govern. Schedules on any contract drawing 
shall take precedence over conflicting information on that or any other 
contract drawing. On any of the drawings where a portion of the work is 
detailed or drawn out and the remainder is shown in outline, the parts 
detailed or drawn out shall apply also to all other like portions of the 
work.
    (b) Where the word ``similar'' occurs on the drawings, it shall have 
a general meaning and not be interpreted as being identical, and all 
details shall be worked out in relation to their location and their 
connection with other parts of the work.
    (c) Standard Details or Specification Drawings are applicable when 
listed, bound with the specifications, noted on the drawings or 
referenced elsewhere in the specifications. Where the notes on the 
drawings indicate modifications, such modifications shall govern.
    (d) In case of difference between Standard Details or Specification 
Drawings and the specifications, the specifications will govern. In case 
of difference between the Standard Details or Specification Drawings and 
their drawings prepared specifically for this contract, the later shall 
govern.

                             (End of clause)



Sec. 552.236-78  Shop Drawings, Coordination Drawings, and Schedules.

    As prescribed in 536.570-9, insert the following clause:

     Shop Drawings, Coordination Drawings, and Schedules (SEP 1999)

    The requirements, of the clause entitled ``Specifications and 
Drawings for Construction'' at FAR 52.236-21, are supplemented as 
follows:
    (a) The Contractor shall submit shop drawings, coordination 
drawings, and schedules for approval as required by the specifications 
or requested by the Contracting Officer as follows:
    (b) Show drawings shall include fabrication, erection and setting 
drawings, schedule drawings, manufacturers' scale drawings, wriring and 
control diagrams, cuts or entire catalogs, pamphlets, descriptive 
literature, and performance and test data.
    (c) Drawings and schedules, other than catalogs, pamphlets and 
similar printed material, shall be submitted in reproducible form with 
two prints made by a process approved by the Contracting Officer. Upon 
approval, the reproducible form will be returned to the Contractor who 
shall then furnish the number of additional prints, not to

[[Page 261]]

exceed 10, required by the specifications. The Contractor shall submit 
shop drawings in catalog, pamphlet and similar printed form in a minimum 
of four copies plus as many additional copies as the Contractor may 
desire or need for his use or use by subcontractors.
    (d) Before submitting shop drawings on the mechanical and electrical 
work, the Contractor shall submit and obtain the Contracting Officer's 
approval of such lists of mechanical and electrical equipment and 
materials as may be required by the specifications.
    (e) Each shop drawing or coordination drawing shall have a blank 
area 5 by 5 inches, located adjacent to the title block. The title block 
shall display the following:

Number and title of drawing
Date of drawing or revision
Name of project building or facility
Name of Contractor and (if appropriate) name of subcontractor submitting 
drawing
Clear identify of contents and location on the work
Project title and contract number

    (f) Unless otherwise provided in this contract, or otherwise 
directed by the Contracting Officer, shop drawings, coordination 
drawings and schedules shall be submitted to the Contracting Officer, 
with a letter in triplicate, sufficiently in advance of construction 
requirements to permit no less than 10 working days for checking and 
appropriate action.
    (g) Approval of drawings and schedules will be general and shall not 
be construed as permitting any departure from the contract requirements, 
or as approving departures from full-size details furnished by the 
Contracting Officer.

                             (End of clause)



Sec. 552.236-79  Samples.

    As prescribed in 536.570-10, insert the following clause:

                           Samples (APR 1984)

    (a) After the award of the contract, the Contractor shall furnish 
for the approval of the Contracting Officer samples required by the 
specifications or by the Contracting Officer. Samples shall be delivered 
to the Contracting Officer or to the Architect as specified or as 
directed. The Contractor shall prepay all shipping charges on samples. 
Materials or equipment for which samples are required shall not be used 
in the work until approved in writing by the Contracting Officer.
    (b) Each sample shall have a label indicating:
    (1) Name of project building or facility, project title and contract 
number.
    (2) Name of Contractor and, if appropriate, name of subcontractor.
    (3) Identification of material or equipment with specification 
requirement.
    (4) Place of origin.
    (5) Name of producer and brand (if any).
    Samples of finished materials shall have additional markings that 
will identify them under the finish schedules.
    (c) The Contractor shall mail under separate cover a letter in 
triplicate submitting each shipment of samples and containing the 
information required in paragraph (b) of this clause. He shall enclose a 
copy of this letter with the shipment and send a copy to the Government 
representative on the project. Approval of a sample shall be only for 
the characteristics or use named in such approval and shall not be 
construed to change or modify any contract requirement. Substitutions 
will not be permitted unless they are approved in writing by the 
Contracting Officer.
    (d) Approved samples not destroyed in testing will be sent to the 
Government representative at the project. Approved samples of hardware 
in good condition will be marked for identification and may be used in 
the work. Materials and equipment, incorporated in the work shall match 
the approved samples. Other samples not destroyed in testing or not 
approved will be returned to the Contractor at his expense if so 
requested at time of submission.
    (e) Failure of any material to pass the specified tests will be 
sufficient cause for refusal to consider, under this contract, any 
further samples of the same brand or make of that material or equipment 
which previously has proved unsatisfactory in service.
    (f) Samples of various materials or equipment delivered on the site 
or in place may be taken by the Government representative for testing. 
Samples failing to meet contract requirements, or there shall be a 
proper adjustment of the contract price as determined by the Contracting 
Officer.
    (g) Unless otherwise specified, when tests are required only one 
test of each sample proposed for use will be made at the expense of the 
Government. Samples which do not meet specification requirements will be 
rejected. Testing of additional samples will be made by the Government 
at the expense of the Contractor.

                             (End of clause)



Sec. 552.236-80  Heat.

    As prescribed in 536.570-11, insert the following clause:

                             Heat (APR 1984)

    Unless otherwise specified or unless already provided by the 
Government the Contractor shall;

[[Page 262]]

    (a) Provide heat, as necessary to protect all work, materials, and 
equipment against injury from dampness and cold;
    (b) Protect, cover and/or heat as may be necessary, to provide and 
maintain a temperature of not less than 50 degrees Fahrenheit (1) in the 
concrete during the placing, setting and curing of concrete, and (2) in 
the plaster during the application, setting and curing of plaster; and
    (c) Provide heat as necessary in the area where work is to be done 
to provide the minimum temperature recommended by the supplier or 
manufacturer of the material, but in no case less than 50 degrees 
Fahrenheit, for a period beginning 10 days before placing or interior 
finishes and finish materials and continuing until completion or 
beneficial occupancy of the area, whichever is earlier.

                             (End of clause)



Sec. 552.236-81  Use of Equipment by the Government.

    As prescribed in 536.570-12, insert the following clause:

              Use of Equipment by the Government (APR 1984)

    (a) The Government may take over and operate, with Government 
employees, such equipment as is necessary for heating or cooling such 
areas of the building as require the service, as soon as the 
installation is sufficiently complete.
    (b) The Contracting Officer will advise the Contractor by letter, 
prior to the use of equipment, which items of equipment will be 
operated, and the date and time such operation will begin.
    (c) Government operation of equipment will not relieve the 
Contractor of the one-year guarantee on materials and workmanship 
elsewhere provided for in this contract.
    (d) The guarantee period, elsewhere provided for in this contact, 
for each piece of equipment shall be in accordance with the 
``Guarantees'' clause of this contract.

                             (End of clause)



Sec. 552.236-82  Subcontracts.

    As prescribed in 536.570-13, insert the following clause:

                         Subcontracts (APR 1984)

    (a) Nothing contained in the contract shall be construed as creating 
any contractual relationship between any subcontractor and the 
Government. The divisions or sections of the specifications are not 
intended to control the Contractor in dividing the work among 
subcontractors, or to limit the work performed by any trade.
    (b) The Contractor shall be responsible to the Government for acts 
and omissions of his own employees and of subcontractors and their 
employees. He shall also be responsible for the coordination of the work 
of the trades, subcontractors and suppliers.
    (c) The Government will not undertake to settle any differences 
between or among the Contractor, subcontractors, or suppliers.

                             (End of clause)



Sec. 552.236-83  Requirement for a Project Labor Agreement.

    As prescribed in 536.570-14, insert a clause substantially the same 
as the following:

          Requirement for a Project Labor Agreement (SEP 1999)

    (a) Definition. ``Project Labor Agreement'' (PLA) means an agreement 
between the contractor, subcontractors, and the union(s) representing 
workers. Under a PLA, the contractor and subcontractors on a project and 
the union(s) agree on terms and conditions of employment for the 
project, establishing a framework for labor-management cooperation to 
advance the Government's procurement interest in cost, efficiency, and 
quality.
    (b) The Contractor shall, after contract award, enter into a PLA for 
performance of [Insert project or contract name]. The PLA binds the 
Contractor and subcontractors of whatever tier engaged in onsite 
construction work. The PLA shall include all the following terms:
    (1) Guarantees against strikes, lockouts, and similar work 
disruptions.
    (2) Effective, prompt and mutually binding procedures for resolving 
labor disputes arising during the project.
    (3) Other mechanisms for labor-management cooperation on matters of 
mutual interest and concern, including productivity, quality of work, 
safety, and health.
    (4) The PLA shall fully conform to all applicable statutes, 
regulations, and Executive Orders.
    (c) Any PLA reached under this clause shall not change the terms of 
this contract or provide for any pricing adjustment by the Government.
    (d) The Government shall not participate in the negotiations of any 
PLA.
    (e) Nothing in this clause precludes contractors or subcontractors 
from competing for contracts or subcontracts on this project without 
discrimination based on union or non-union status.

[[Page 263]]

                             (End of clause)



Sec. 552.237-70  Qualifications of Offerors.

    As prescribed in 537.110(a), insert the following provision:

                  Qualifications of Offerors (MAY 1989)

    (a) Offers will be considered only from responsible organizations or 
individuals now or recently engaged in the performance of building 
service contracts comparable to those described in this solicitation. In 
order to determine an Offeror's qualifications, the Offeror may be 
requested to furnish a narrative statement listing comparable contracts 
which it has performed; a general history of its operating organization; 
and its complete experience. An Offeror may also be required to furnish 
a statement of its financial resources; show that it has the ability to 
maintain a staff of regular employees adequate to ensure continuous 
performance of the work; and, demonstrate that its equipment and/or 
plant capacity for the work contemplated is sufficient, adequate, and 
suitable.
    (b) Competency in performing comparable building service contracts, 
demonstration of acceptable financial resources, personnel staffing, 
plant, equipment, and supply sources will be considered in determining 
whether an Offeror is responsible.
    (c) Prospective Offerors are advised that in evaluating these areas 
involving any small business concern(s), any negative determinations are 
subject to the Certificate of Competency procedures set forth in the 
Federal Acquisition Regulation.

                           (End of provision)



Sec. 552.237-71  Qualifications of Employees.

    As prescribed in 537.110(b), insert the following clause:

                 Qualifications of Employees (MAY 1989)

    (a) The contracting officer or a designated representative may 
require the Contractor to remove any employee(s) from GSA controlled 
buildings or other real property should it be determined that the 
individual(s) is either unsuitable for security reasons or otherwise 
unfit to work on GSA controlled property.
    (b) The Contractor shall fill out and cause all of its employees 
performing work on the contract work to fill out, for submission to the 
Government, such forms as may be necessary for security or other 
reasons. Upon request of the Contracting Officer, the Contractor and its 
employees shall be fingerprinted.
    (c) Each employee of the Contractor shall be a citizen of the United 
States of America, or an alien who has been lawfully admitted for 
permanent residence as evidenced by Alien Registration Receipt Card Form 
I-151, or, who presents other evidence from the Immigration and 
Naturalization Service that employment will not affect his immigration 
status.

                             (End of clause)



Sec. 552.237-72  Prohibition Regarding ``Quasi-Military Armed Forces.''

    As prescribed in 537.110(c), insert the following clause:

    Prohibition Regarding ``Quasi-Military Armed Forces'' (SEP 1999)

    The Contractor must not, during the term of this contract, offer for 
hire ``Quasi-Military Armed Forces'' within the meaning of the court 
decision in United States ex. rel. Weinberger v. Equifax, 557 F.2d 456 
(5th Cir. 1977).

                             (End of clause)



Sec. 552.237-73  Restriction on Disclosure of Information.

    As prescribed in 537.270, insert the following clause:

           Restriction on Disclosure of Information (SEP 1999)

    (a) The Contractor shall, in the performance of this contract, keep 
all information contained in source documents or other media furnished 
by the Government in the strictest confidence. The Contractor shall not 
publish or otherwise divulge such information in whole or in part, in 
any manner or form, nor authorize or permit others to do so. The 
Contractor shall take such reasonable measures as are necessary to 
restrict access to such information, while in the Contractor's 
possession, to those employees needing such information to perform the 
work provided herein, i.e., on a ``need to know'' basis. The Contractor 
shall immediately notify, in writing, the Contracting Officer in the 
event that the Contractor determines or has reason to suspect a breach 
of this requirement.
    (b) The Contractor shall not disclose any information concerning the 
work under this contract to any person or individual unless the 
Contractor obtains prior written approval from the Contracting Officer.
    (c) The Contractor shall insert the substance of this clause in any 
consultant agreement or subcontract under this contract.
    (d) Any unauthorized disclosure of information may result in 
termination of this contract for cause.

[[Page 264]]

                             (End of clause)



Sec. 552.238-70  Identification of Electronic Office Equipment Providing 

Accessibility for the Handicapped.

    As prescribed in 538.273(a)(1), insert the following clause:

 Identification of Electronic Office Equipment Providing Accessibility 
                     for the Handicapped (SEP 1991)

    (a) Definitions. ``Electronic office equipment accessiblity'' means 
the application/configuration of electronic office equipment (includes 
hardware, software and firmware) in a manner that accommodates the 
functional limitations of individuals with disabilities (i.e., 
handicapped individuals) so as to promote productivity and provide 
access to work related and/or public information resources.
    ``Handicapped individuals'' mean qualified individuals with 
impairments as cited in 29 CFR 1613.702(f) who can benefit from 
electronic office equipment accessibility.
    ``Special peripheral'' means a special needs aid that provides 
access to electronic equipment that is otherwise inaccessible to a 
handicapped individual.
    (b) The offeror is encouraged to identify in its offer, and include 
in any commercial catalogs and pricelists accepted by the Contracting 
Officer, office equipment, including any special peripheral, that will 
facilitate electronic office equipment accessibility for handicapped 
individuals. Identification should include the type of disability 
accommodated and how the users with that disability would be helped.

                             (End of clause)



Sec. 552.238-71  Submission and Distribution of Authorized FSS Schedule 

Pricelists.

    As prescribed in 538.273(a)(2), insert the following clause:

 Submission and Distribution of Authorized FSS Schedule Pricelists (SEP 
                                  1999)

    (a) Definition. For the purposes of this clause, the Mailing List is 
[Contracting officer shall insert either: ``the list of addressees 
provided to the Contractor by the Contracting Officer'' or ``the 
Contractor's listing of its Federal Government customers''].
    (b) The Contracting Officer will return one copy of the Authorize 
FSS Schedule Pricelist to the Contractor with the notification of 
contract award.
    (c)(1) The Contractor shall provide to the GSA Contracting Officer:
    (i) Two paper copies of Authorized FSS Schedule Pricelist; and
    (ii) The Authorized FSS Schedule Pricelist on a common-use 
electronic medium.
    The Contracting Officer will provide detailed instructions for the 
electronic submission with the award notification. Some structured data 
entry in a prescribed format may be required.
    (2) The Contractor shall provide to each addressee on the mailing 
list either:
    (i) One paper copy of the Authorized FSS Schedule Price List; or
    (ii) A self-addressed, postage-paid envelope or postcard to be 
returned by addressee that want to receive a paper copy of the 
pricelist. The Contractor shall distribute price lists within 20 
calendar days after receipt of returned requests.
    (3) The Contractor shall advise each addressee of the availability 
of pricelist information through the on-line Multiple Award Schedule 
electronic data base.
    (d) The Contractor shall make all of the distributions required in 
paragraph (c) at least 15 calendar days before the beginning of the 
contract period, or within 30 calendar days after receipt of the 
Contracting Officer's approval for printing, whichever is later.
    (e) During the period of the contract, the Contractor shall provide 
one copy of its Authorized FSS Schedule Pricelist to any authorized 
schedule user, upon request. Use of the mailing list for any other 
purpose is not authorized.

                             (End of clause)

    Alternate I (MAY 2003). As prescribed in 538.273(a)(2), substitute 
the following paragraph (a) for paragraph (a) of the basic clause:

    (a) Definition. For the purposes of this clause, the Mailing List is 
[Contracting officer shall insert either: ``the list of addressees 
provided to the Contractor by the Contracting Officer'' or ``the 
Contractor's listing of its ordering activity customers''].

[64 FR 37229, July 9, 1999, as amended at 68 FR 24381, May 7, 2003]



Sec. 552.238-72  Identification of Products That Have Environmental 

Attributes.

    As prescribed in 538.273(a)(3), insert the following clause:

Identification of Products That Have Environmental Attributes (SEP 2003)

    (a) Several laws, Executive orders, and Agency directives require 
Federal buyers to purchase products that are less harmful to the 
environment, when they are life cycle cost-effective (see FAR Subpart 
23.7). The U.S. General Services Administration (GSA)

[[Page 265]]

requires contractors to highlight environmental products under Federal 
Supply Service schedule contracts in various communications media (e.g., 
publications and electronic formats).
    (b) Definitions. As used in this clause--
    Energy-efficient product means a product that--
    (1) Meets Department of Energy and Environmental Protection Agency 
criteria for use of the ENERGY STAR [reg] trademark label; or
    (2) Is in the upper 25 percent of efficiency for all similar 
products as designated by the Department of Energy's Federal Energy 
Management Program.
    GSA Advantage! is an on-line shopping mall and ordering system that 
provides customers with access to products and services under GSA 
contracts.
    Other environmental attributes refers to product characteristics 
that provide environmental benefits, excluding recovered materials and 
energy and water efficiency. Several examples of these characteristics 
are biodegradable, recyclable, reduced pollutants, ozone safe, and low 
volatile organic compounds (VOCs).
    Post-consumer material means a material or finished product that has 
served its intended use and has been discarded for disposal or recovery, 
having completed its life as a consumer item. Post-consumer material is 
part of the broader category of ``recovered material.'' The 
Environmental Protection Agency (EPA) has developed a list of EPA-
designated products in their Comprehensive Procurement Guidelines (CPGs) 
to provide Federal agencies with purchasing recommendations on specific 
products in a Recovered Materials Advisory Notice (RMAN). The RMAN 
contains recommended recovered and post-consumer material content levels 
for the specific products designated by EPA (40 CFR part 247 and http://
www.epa.gov/cpg/).
    Recovered materials means waste materials and by-products recovered 
or diverted from solid waste, but the term does not include those 
materials and by-products generated from, and commonly reused within, an 
original manufacturing process (Executive Order 13101 and 42 U.S.C. 
6903(19) and http://www.epa.gov/cpg/). For paper and paper products, see 
the definition at FAR 11.301 (42 U.S.C. 6962(h)).
    Remanufactured means factory rebuilt to original specifications.
    Renewable energy means energy produced by solar, wind, geothermal, 
and biomass power.
    Renewable energy technology means--
    (1) Technologies that use renewable energy to provide light, heat, 
cooling, or mechanical or electrical energy for use in facilities or 
other activities; or
    (2) The use of integrated whole-building designs that rely upon 
renewable energy resources, including passive solar design.
    (c)(1) The offeror must identify products that--
    (i) Are compliant with the recovered and post-consumer material 
content levels recommended in the Recovered Materials Advisory Notices 
(RMANs) for EPA-designated products in the CPG program (http://
www.epa.gov/cpg/);
    (ii) Contain recovered materials that either do not meet the 
recommended levels in the RMANs or are not EPA-designated products in 
the CPG program (see FAR 23.401 and http://www.epa.gov/cpg/);
    (iii) Are energy-efficient, as defined by either ENERGY STAR 
[reg] and/or FEMP's designated top 25th percentile levels 
(see ENERGY STAR [reg] at http://www.energystar.gov/ and FEMP 
at http://www.eere.energy.gov/femp/procurement/);
    (iv) Are water-efficient;
    (v) Use renewable energy technology;
    (vi) Are remanufactured; and
    (vii) Have other environmental attributes.
    (2) These identifications must be made in each of the offeror's 
following mediums:
    (i) The offer itself.
    (ii) Printed commercial catalogs, brochures, and pricelists.
    (iii) Online product website.
    (iv) Electronic data submission for GSA Advantage! submitted via 
GSA's Schedules Input Program (SIP) software or the Electronic Data 
Inter-change (EDI). Offerors can use the SIP or EDI methods to indicate 
environmental and other attributes for each product that is translated 
into respective icons in GSA Advantage!.
    (d) An offeror, in identifying an item with an environmental 
attribute, must possess evidence or rely on a reasonable basis to 
substantiate the claim (see 16 CFR part 260, Guides for the Use of 
Environmental Marketing Claims). The Government will accept an offeror's 
claim of an item's environmental attribute on the basis of--
    (1) Participation in a Federal agency-sponsored program (e.g., the 
EPA and DOE ENERGY STAR [reg] product labeling program);
    (2) Verification by an independent organization that specializes in 
certifying such claims; or
    (3) Possession of competent and reliable evidence. For any test, 
analysis, research, study, or other evidence to be ``competent and 
reliable,'' it must have been conducted and evaluated in an objective 
manner by persons qualified to do so, using procedures generally 
accepted in the profession to yield accurate and reliable results.

                             (End of clause)

[68 FR 52128, Sept. 2, 2003]

[[Page 266]]



Sec. 552.238-73  Cancellation.

    As prescribed in 538.273(a)(4), insert the following clause:

                         Cancellation (SEP 1999)

    Either party may cancel this contract in whole or in part by 
providing written notice. The cancellation will take effect 30 calendar 
days after the other party receives the notice of cancellation. If the 
Contractor elects to cancel this contract, the Government will not 
reimburse the minimum guarantee.

                             (End of clause)



Sec. 552.238-74  Industrial Funding Fee and Sales Reporting.

    As prescribed in 538.273(b)(1), insert the following clause:

         Industrial Funding Fee and Sales Reporting (JULY 2003)

    (a) Reporting of Federal Supply Schedule Sales. The Contractor shall 
report all contract sales under this contract as follows:
    (1) The Contractor shall accurately report the dollar value, in U.S. 
dollars and rounded to the nearest whole dollar, of all sales under this 
contract by calendar quarter (January 1-March 31, April 1-June 30, July 
1-September 30, and October 1-December 31). The dollar value of a sale 
is the price paid by the Schedule user for products and services on a 
Schedule task or delivery order. The reported contract sales value shall 
include the Industrial Funding Fee (IFF). The Contractor shall maintain 
a consistent accounting method of sales reporting, based on the 
Contractor's established commercial accounting practice. The acceptable 
points at which sales may be reported include--
    (i) Receipt of order;
    (ii) Shipment or delivery, as applicable;
    (iii) Issuance of an invoice; or
    (iv) Payment.
    (2) Contract sales shall be reported to FSS within 30 calendar days 
following the completion of each reporting quarter. The Contractor shall 
continue to furnish quarterly reports, including ``zero'' sales, through 
physical completion of the last outstanding task order or delivery order 
of the contract.
    (3) Reportable sales under the contract are those resulting from 
sales of contract items to authorized users unless the purchase was 
conducted pursuant to a separate contracting authority such as a 
Governmentwide Acquisition Contract (GWAC); a separately awarded FAR 
Part 12, FAR Part 13, FAR Part 14, or FAR Part 15 procurement; or a non-
FAR contract. Sales made to state and local governments under 
Cooperative Purchasing authority shall be counted as reportable sales 
for IFF purposes.
    (4) The Contractor shall electronically report the quarterly dollar 
value of sales, including ``zero'' sales, by utilizing the automated 
reporting system at an Internet website designated by the General 
Services Administration (GSA)'s Federal Supply Service (FSS). Prior to 
using this automated system, the Contractor shall complete contract 
registration with the FSS Vendor Support Center (VSC). The website 
address, as well as registration instructions and reporting procedures, 
will be provided at the time of award. The Contractor shall report sales 
separately for each National Stock Number (NSN), Special Item Number 
(SIN), or sub-item.
    (5) The Contractor shall convert the total value of sales made in 
foreign currency to U.S. dollars using the ``Treasury Reporting Rates of 
Exchange'' issued by the U.S. Department of Treasury, Financial 
Management Service. The Contractor shall use the issue of the Treasury 
report in effect on the last day of the calendar quarter. The report is 
available from Financial Management Service, International Funds Branch, 
Telephone: (202) 874-7994, Internet: http://www.fms.treas.gov/intn.html.
    (b) The Contractor shall remit the IFF at the rate set by GSA's FSS.
    (1) The Contractor shall remit the IFF to FSS in U.S. dollars within 
30 calendar days after the end of the reporting quarter; final payment 
shall be remitted within 30 days after physical completion of the last 
outstanding task order or delivery order of the contract.
    (2) The IFF represents a percentage of the total quarterly sales 
reported. This percentage is set at the discretion of GSA's FSS. GSA's 
FSS has the unilateral right to change the percentage at any time, but 
not more than once per year. FSS will provide reasonable notice prior to 
the effective date of the change. The IFF reimburses FSS for the costs 
of operating the Federal Supply Schedules Program and recoups its 
operating costs from ordering activities. Offerors must include the IFF 
in their prices. The fee is included in the award price(s) and reflected 
in the total amount charged to ordering activities. FSS will post notice 
of the current IFF at http://72a.fss.gsa.gov/ or successor website as 
appropriate.
    (c) Within 60 days of award, an FSS representative will provide the 
Contractor with specific written procedural instructions on remitting 
the IFF. FSS reserves the unilateral right to change such instructions 
from time to time, following notification to the Contractor.
    (d) Failure to remit the full amount of the IFF within 30 calendar 
days after the end of the applicable reporting period constitutes a 
contract debt to the United States Government under the terms of FAR 
Subpart 32.6. The Government may exercise all rights

[[Page 267]]

under the Debt Collection Improvement Act of 1996, including withholding 
or setting off payments and interest on the debt (see FAR clause 52.232-
17, Interest). Should the Contractor fail to submit the required sales 
reports, falsify them, or fail to timely pay the IFF, this is sufficient 
cause for the Government to terminate the contract for cause.

                             (End of clause)

[68 FR 41288, July 11, 2003]



Sec. 552.238-75  Price Reductions.

    As prescribed in 538.273(b)(2), insert the following clause:

                       Price Reductions (MAY 2004)

    (a) Before award of a contract, the Contracting Officer and the 
Offeror will agree upon (1) the customer (or category of customers) 
which will be the basis of award, and (2) the Government's price or 
discount relationship to the identified customer (or category of 
customers). This relationship shall be maintained through out the 
contract period. Any change in the Contractor's commercial pricing or 
discount arrangement applicable to the identified customer (or category 
of customers) which disturbs this relationship shall constitute a price 
reduction.
    (b) During the contract period, the Contractor shall report to the 
Contracting Officer all price reductions to the customer (or category of 
customers) that was the basis of award. The Contractor's report shall 
include an explanation of the conditions under which the reductions were 
made.
    (c)(1) A price reduction shall apply to purchases under this 
contract if, after the date negotiations conclude, the Contractor--
    (i) Revises the commercial catalog, pricelist, schedule or other 
document upon which contract award was predicated to reduce prices;
    (ii) Grants more favorable discounts or terms and conditions than 
those contained in the commercial catalog, pricelist, schedule or other 
documents upon which contract award was predicated; or
    (iii) Grants special discounts to the customer (or category of 
customers) that formed the basis of award, and the change disturbs the 
price/discount relationship of the Government to the customer (or 
category of customers) that was the basis of award.
    (2) The Contractor shall offer the price reduction to the Government 
with the same effective date, and for the same time period, as extended 
to the commercial customer (or category of customers).
    (d) There shall be no price reduction for sales--
    (1) To commercial customers under firm, fixed-price definite 
quantity contracts with specified delivery in excess of the maximum 
order threshold specified in this contract;
    (2) To Federal agencies;
    (3) Made to State and local government entities when the order is 
placed under this contract (and the State and local government entity is 
the agreed upon customer or category of customer that is the basis of 
award); or
    (4) Caused by an error in quotation or billing, provided adequate 
documentation is furnished by the Contractor to the Contracting Officer.
    (e) The Contractor may offer the Contracting Officer a voluntary 
Governmentwide price reduction at any time during the contract period.
    (f) The Contractor shall notify the Contracting Officer of any price 
reduction subject to this clause as soon as possible, but not later than 
15 calendar days after its effective date.
    (g) The contractor will be modified to reflect any price reduction 
which becomes applicable in accordance with this clause.

                             (End of clause)

    Alternate I (MAY 2003). As prescribed in 538.273(b)(2), substitute 
the following paragraph (c)(2) for paragraph (c)(2) of the basic clause, 
and substitute the following paragraph (d)(2) for paragraph (d)(2) of 
the basic clause.

    (c)(2) The Contractor shall offer the price reduction to the 
eligible ordering activities with the same effective date, and for the 
same time period, as extended to the commercial customer (or category of 
customers).
    (d)(2) To eligible ordering activities under this contract; or

[64 FR 37229, July 9, 1999, as amended at 68 FR 24381, May 7, 2003; 69 
FR 28065, May 18, 2004]



Sec. 552.238-76  Definition (Federal Supply Schedules)--Recovery 

Purchasing.

    As prescribed in 538.7104(a), insert the following clause:

  Definition (Federal Supply Schedules)--Recovery Purchasing (FEB 2007)

    Ordering activity (also called ``ordering agency'' and ``ordering 
office'') means an eligible ordering activity (see 552.238-78, Alternate 
I) authorized to place orders under Federal Supply Schedule contracts.

                             (End of clause)

[72 FR 4654, Feb. 1, 2007]

[[Page 268]]



Sec. 552.238-77  Definition (Federal Supply Schedules).

    As prescribed in 538.7004(a), insert the following clause:

            Definition (Federal Supply Schedules) (MAY 2003)

    Ordering activity (also called ``ordering agency'' and ``ordering 
office'') means an eligible ordering activity (see 552.238-78) 
authorized to place orders under Federal Supply Schedule contracts.

                             (End of clause)

[68 FR 24381, May 7, 2003]



Sec. 552.238-78  Scope of Contract (Eligible Ordering Activities).

    As prescribed in 538.7004(b), insert the following clause:

       Scope of Contract (Eligible Ordering Activities) (MAY 2004)

    (a) This solicitation is issued to establish contracts which may be 
used on a nonmandatory basis by the agencies and activities named below, 
as a source of supply for the supplies or services described herein, for 
domestic and/or overseas delivery. For Special Item Number 132-53, 
Wireless Services ONLY, limited geographic coverage (consistent with the 
Offeror's commercial practice) may be proposed.
    (1) Executive agencies (as defined in FAR Subpart 2.1) including 
nonappropriated fund activities as prescribed in 41 CFR 101-26.000);
    (2) Government contractors authorized in writing by a Federal agency 
pursuant to FAR 51.1;
    (3) Mixed ownership Government corporations (as defined in the 
Government Corporation Control Act);
    (4) Federal Agencies, including establishments in the legislative or 
judicial branch of government (except the Senate, the House of 
Representatives and the Architect of the Capitol and any activities 
under the direction of the Architect of the Capitol).
    (5) The District of Columbia;
    (6) Tribal governments when authorized under 25 U.S.C. 450j(k);
    (7) Qualified Nonprofit Agencies as authorized under 40 U.S.C. 
502(b); and
    (8) Organizations, other than those identified in paragraph (d) of 
this clause, authorized by GSA pursuant to statute or regulation to use 
GSA as a source of supply.
    (b) Definitions. Domestic delivery is delivery within the 48 
contiguous states, Alaska, Hawaii, Puerto Rico, Washington, DC, and U.S. 
territories. Domestic delivery also includes a port or consolidation 
point, within the aforementioned areas, for orders received from 
overseas activities.
    Overseas delivery is delivery to points outside of the 48 contiguous 
states, Washington, DC, Alaska, Hawaii, Puerto Rico, and U.S. 
territories.
    (c) Offerors are requested to check one of the following boxes:
    [squ] Contractor will provide domestic and overseas delivery.
    [squ] Contractor will provide overseas delivery only.
    [squ] Contractor will provide domestic delivery only.
    (d) The following activities may place orders against information 
technology schedule 70 contracts and Consolidated Products and Services 
Schedule contracts containing information technology special item 
numbers, on an optional basis; PROVIDED, the Contractor accepts order(s) 
from such activities:
    State and local government, includes any state, local, regional or 
tribal government or any instrumentality thereof (including any local 
educational agency or institution of higher learning).
    (e) Articles or services may be ordered from time to time in such 
quantities as may be needed to fill any requirement, subject to the 
Order Limitations thresholds which will be specified in resultant 
contracts. Overseas activities may place orders directly with schedule 
contractors for delivery to CONUS port or consolidation point.
    (f)(1) The Contractor is obligated to accept orders received from 
activities within the Executive branch of the Federal Government.
    (2) The Contractor is not obligated to accept orders received from 
activities outside the Executive branch; however, the Contractor is 
encouraged to accept such orders. If the Contractor elects to accept 
such orders, all provisions of the contract shall apply, including 
clause 552.232-79, Payment by Credit Card. If the Contractor is 
unwilling to accept such orders, and the proposed method of payment is 
not through the Credit Card, the Contractor shall return the order by 
mail or other means of delivery within 5 workdays from receipt. If the 
Contractor is unwilling to accept such orders, and the proposed method 
of payment is through the Credit Card, the Contractor must so advise the 
ordering activity within 24 hours of receipt of order. (Reference clause 
552.232-79, Payment by Credit Card.) Failure to return an order or 
advise the ordering activity within the time frames of this paragraph 
shall constitute acceptance whereupon all provisions of the contract 
shall apply.
    (g) The Government is obligated to purchase under each resultant 
contract a guaranteed minimum of $2,500 (two thousand, five hundred 
dollars) during the contract term.
    Alternate I (FEB 2007). As prescribed in 538.7104(b), substitute the 
following

[[Page 269]]

paragraphs (a) and (d) for paragraphs (a) and (d) of the basic clause:
    (a) This solicitation is issued to establish contracts which may be 
used on a nonmandatory basis by the agencies and activities named below, 
as a source of supply for the supplies or services described herein, for 
domestic delivery.
    (1) Executive agencies (as defined in Federal Acquisition Regulation 
Subpart 2.1) including nonappropriated fund activities as prescribed in 
41 CFR 101-26.000;
    (2) Government contractors authorized in writing by a Federal agency 
pursuant to Federal Acquisition Regulation Subpart 51.1;
    (3) Mixed ownership Government corporations (as defined in the 
Government Corporation Control Act);
    (4) Federal Agencies, including establishments in the legislative or 
judicial branch of government (except the Senate, the House of 
Representatives and the Architect of the Capitol and any activities 
under the direction of the Architect of the Capitol);
    (5) The District of Columbia;
    (6) Tribal governments when authorized under 25 U.S.C. 450j(k);
    (7) Qualified Nonprofit Agencies as authorized under 40 U.S.C. 
502(b); and
    (8) Organizations, other than those identified in paragraph (d) of 
this clause, authorized by GSA pursuant to statute or regulation to use 
GSA as a source of supply.
    (d) The following activities may place orders against Federal Supply 
Schedules for products and services determined by the Secretary of 
Homeland Security to facilitate recovery from major disasters, 
terrorism, or nuclear, biological, chemical, or radiological attack, on 
an optional basis; PROVIDED, the Contractor accepts order(s) from such 
activities: State and local government entities, includes any state, 
local, regional or tribal government or any instrumentality thereof 
(including any local educational agency or institution of higher 
learning).
    State and local government entities, means the states of the United 
States, counties, municipalities, cities, towns, townships, tribal 
governments, public authorities (including public or Indian housing 
agencies under the United States Housing Act of 1937), school districts, 
colleges and other institutions of higher education, council of 
governments (incorporated or not), regional or interstate government 
entities, or any agency or instrumentality of the preceding entities 
(including any local educational agency or institution of higher 
education), and including legislative and judicial departments. The term 
does not include contractors of, or grantees of, State or local 
governments.
    (1) Local educational agency has the meaning given that term in 
section 8013 of the Elementary and Secondary Education Act of 1965 (20 
U.S.C. 7713).
    (2) Institution of higher education has the meaning given that term 
in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 
1001(a)).
    (3) Tribal government means--
    (i) The governing body of any Indian tribe, band, nation, or other 
organized group or community located in the continental United States 
(excluding the State of Alaska) that is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians; and
    (ii) Any Alaska Native regional or village corporation established 
pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et 
seq.).

                             (End of clause)

[68 FR 24381, May 7, 2003, as amended at 69 FR 28065, May 18, 2004; 72 
FR 4654, Feb. 1, 2007]



Sec. 552.238-79  Use of Federal Supply Schedule Contracts by Certain 

Entities--Cooperative Purchasing.

    As prescribed in 538.7004(c), insert the following clause:

     Use of Federal Supply Schedule Contracts by Certain Entities--
                    Cooperative Purchasing (MAY 2004)

    (a) If an entity identified in paragraph (d) of the clause at 
552.238-78, Scope of Contract (Eligible Ordering Activities), elects to 
place an order under this contract, the entity agrees that the order 
shall be subject to the following conditions:
    (1) When the Contractor accepts an order from such an entity, a 
separate contract is formed which incorporates by reference all the 
terms and conditions of the Schedule contract except the Disputes 
clause, the patent indemnity clause, and the portion of the Commercial 
Item Contract Terms and Conditions that specifies ``Compliance with laws 
unique to Government contracts'' (which applies only to contracts with 
entities of the Executive branch of the U.S. Government). The parties to 
this new contract which incorporates the terms and conditions of the 
Schedule contract are the individual ordering activity and the 
Contractor. The U.S. Government shall not be liable for the performance 
or nonperformance of the new contract. Disputes which cannot be resolved 
by the parties to the new contract may be litigated in any State or 
Federal court with jurisdiction over the parties, applying Federal 
procurement law, including statutes, regulations and case law, and, if 
pertinent, the Uniform Commercial Code. To the extent authorized by law, 
parties to this new contract are encouraged to resolve disputes through 
Alternative Dispute Resolution. Likewise, a

[[Page 270]]

Blanket Purchase Agreement (BPA), although not a contract, is an 
agreement that may be entered into by the Contractor with such an entity 
and the Federal Government is not a party.
    (2) Where contract clauses refer to action by a Contracting Officer 
or a Contracting Officer of GSA, that shall mean the individual 
responsible for placing the order for the ordering activity (e.g., FAR 
52.212-4 at paragraph (f) and FSS clause I-FSS-249 B.)
    (3) As a condition of using this contract, eligible ordering 
activities agree to abide by all terms and conditions of the Schedule 
contract, except for those deleted clauses or portions of clauses 
mentioned in paragraph (a)(1) of this clause. Ordering activities may 
include terms and conditions required by statute, ordinance, regulation, 
order, or as otherwise allowed by State and local government entities as 
a part of a statement of work (SOW) or statement of objective (SOO) to 
the extent that these terms and conditions do not conflict with the 
terms and conditions of the Schedule contract. The ordering activity and 
the Contractor expressly acknowledge that, in entering into an agreement 
for the ordering activity to purchase goods or services from the 
Contractor, neither the ordering activity nor the Contractor will look 
to, primarily or in any secondary capacity, or file any claim against 
the United States or any of its agencies with respect to any failure of 
performance by the other party.
    (4) The ordering activity is responsible for all payments due the 
Contractor under the contract formed by acceptance of the ordering 
activity's order, without recourse to the agency of the U.S. Government, 
which awarded the Schedule contract.
    (5) The Contractor is encouraged, but not obligated, to accept 
orders from such entities. The Contractor may, within 5 days of receipt 
of the order, decline to accept any order, for any reason. The 
Contractor shall fulfill orders placed by such entities, which are not 
declined within the 5-day period.
    (6) The supplies or services purchased will be used for governmental 
purposes only and will not be resold for personal use. Disposal of 
property acquired will be in accordance with the established procedures 
of the ordering activity for the disposal of personal property.
    (b) If the Schedule Contractor accepts an order from an entity 
identified in paragraph (d) of the clause at 552.238-78, Scope of 
Contract (Eligible Ordering Activities), the Contractor agrees to the 
following conditions:
    (1) The ordering activity is responsible for all payments due the 
Contractor for the contract formed by acceptance of the order, without 
recourse to the agency of the U.S. Government, which awarded the 
Schedule contract.
    (2) The Contractor is encouraged, but not obligated, to accept 
orders from such entities. The Contractor may, within 5 days of receipt 
of the order, decline to accept any order, for any reason. The 
Contractor shall decline the order using the same means as those used to 
place the order. The Contractor shall fulfill orders placed by such 
entities, which are not declined within the 5-day period.
    (c) In accordance with clause 552.238-74, Industrial Funding Fee and 
Sales Reporting, the Contractor must report the quarterly dollar value 
of all sales under this contract. When submitting sales reports, the 
Contractor must report two dollar values for each Special Item Number:
    (1) The dollar value for sales to entities identified in paragraph 
(a) of the clause at 552.238-78, Scope of Contract (Eligible Ordering 
Activities), and
    (2) The dollar value for sales to entities identified in paragraph 
(d) of clause 552.238-78.

                             (End of clause)

[68 FR 24381, May 7, 2003, as amended at 68 FR 41289, July 11, 2003; 69 
FR 28066, May 18, 2004]



Sec. 552.238-80  Use of Federal Supply Schedule Contracts by Certain 

Entities--Recovery Purchasing.

    As prescribed in 538.7104(c), insert the following clause:

 Use of Federal Supply Schedule Contracts by Certain Entities--Recovery 
                          Purchasing (FEB 2007)

    (a) If an entity identified in paragraph (d) of the clause at 
552.238-78, Scope of Contract (Eligible Ordering Activities)--Alternate 
I, elects to place an order under this contract, the entity agrees that 
the order shall be subject to the following conditions:
    (1) When the Contractor accepts an order from such an entity, a 
separate contract is formed which incorporates by reference all the 
terms and conditions of the Schedule contract except the Disputes 
clause, the patent indemnity clause, and the portion of the Commercial 
Item Contract Terms and Conditions that specifies ``Compliance with laws 
unique to Government contracts'' (which applies only to contracts with 
entities of the Executive branch of the U.S. Government). The parties to 
this new contract which incorporates the terms and conditions of the 
Schedule contract are the individual ordering activity and the 
Contractor. The U.S. Government shall not be liable for the performance 
or nonperformance of the new contract. Disputes which cannot be resolved 
by

[[Page 271]]

the parties to the new contract may be litigated in any State or Federal 
court with jurisdiction over the parties, applying Federal procurement 
law, including statutes, regulations and case law, and, if pertinent, 
the Uniform Commercial Code. To the extent authorized by law, parties to 
this new contract are encouraged to resolve disputes through Alternative 
Dispute Resolution. Likewise, a Blanket Purchase Agreement (BPA), 
although not a contract, is an agreement that may be entered into by the 
Contractor with such an entity and the Federal Government is not a 
party.
    (2) Where contract clauses refer to action by a Contracting Officer 
or a Contracting Officer of GSA, that shall mean the individual 
responsible for placing the order for the ordering activity (e.g., 
Federal Acquisition Regulation 52.212-4 at paragraph (f) and FSS clause 
I-FSS-249 B).
    (3) As a condition of using this contract, eligible ordering 
activities agree to abide by all terms and conditions of the Schedule 
contract, except for those deleted clauses or portions of clauses 
mentioned in paragraph (a)(1) of this clause. Ordering activities may 
include terms and conditions required by statute, ordinance, regulation, 
order, or as otherwise allowed by State and local government entities as 
a part of a statement of work (SOW) or statement of objective (SOO) to 
the extent that these terms and conditions do not conflict with the 
terms and conditions of the Schedule contract. The ordering activity and 
the Contractor expressly acknowledge that, in entering into an agreement 
for the ordering activity to purchase goods or services from the 
Contractor, neither the ordering activity nor the Contractor will look 
to, primarily or in any secondary capacity, or file any claim against 
the United States or any of its agencies with respect to any failure of 
performance by the other party.
    (4) The ordering activity is responsible for all payments due the 
Contractor under the contract formed by acceptance of the ordering 
activity's order, without recourse to the agency of the U.S. Government, 
which awarded the Schedule contract.
    (5) The Contractor is encouraged, but not obligated, to accept 
orders from such entities. The Contractor may, within 5 days of receipt 
of the order, decline to accept any order, for any reason. The 
Contractor shall fulfill orders placed by such entities, which are not 
declined within the 5-day period.
    (6) The supplies or services purchased will be used for governmental 
purposes only and will not be resold for personal use. Disposal of 
property acquired will be in accordance with the established procedures 
of the ordering activity for the disposal of personal property.
    (7) The state or local government ordering activity will be 
responsible for purchasing products or services to be used to facilitate 
recovery from a major disaster declared by the President under the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5121 et seq.) or to facilitate recovery from terrorism or 
nuclear, biological, chemical, or radiological attack.
    (b) If the Schedule Contractor accepts an order from an entity 
identified in paragraph (d) of the clause at 552.238-78, Scope of 
Contract (Eligible Ordering Activities)--Alternate I, the Contractor 
agrees to the following conditions--
    (1) The ordering activity is responsible for all payments due the 
Contractor for the contract formed by acceptance of the order, without 
recourse to the agency of the U.S. Government, which awarded the 
Schedule contract.
    (2) The Contractor is encouraged, but not obligated, to accept 
orders from such entities. The Contractor may, within 5 days of receipt 
of the order, decline to accept any order, for any reason. The 
Contractor shall decline the order using the same means as those used to 
place the order. The Contractor shall fulfill orders placed by such 
entities, which are not declined within the 5-day period.
    (c) In accordance with clause 552.238-74, Industrial Funding Fee and 
Sales Reporting, the Contractor must report the quarterly dollar value 
of all sales under this contract. When submitting sales reports, the 
Contractor must report two dollar values for each Special Item Number--
    (1) The dollar value for sales to entities identified in paragraph 
(a) of the clause at 552.238-78, Scope of Contract (Eligible Ordering 
Activities)--Alternate I; and
    (2) The dollar value for sales to entities identified in paragraph 
(d) of clause 552.238-78, Alternate I.
    (d) A listing of the Federal Supply Schedule contracts for the 
products and services available for disaster recovery purchasing is 
accessible in GSA's Schedules e-Library at Web site http://
www.gsaelibrary.gsa.gov. Click on the link, ``Disaster Recovery 
Purchasing, State and Local.'' The participating Contractors and the 
products and services available for disaster recovery purchasing will be 
labeled with the Disaster Recovery Purchasing icon.

                             (End of clause)

[72 FR 4654, Feb. 1, 2007]



Sec. 552.242-70  Status Report of Orders and Shipments.

    As prescribed in 542.1107, insert the following clause:

[[Page 272]]

            Status Report of Orders and Shipments (APR 1992)

    (a) The Contractor shall furnish to the Administrative Contracting 
Officer (ACO) a report covering orders received and shipments made 
during each calendar month of contract performance. The information 
required by the Government shall be reported on GSA Form 1678, Status 
Report of Orders and Shipments, in accordance with instructions on the 
form. The information required by the GSA Form 1678 may also be 
submitted in an automated printout form if authorized by the ACO. 
Alternatively, the required information may be reported by electronic 
data interchange using ANSI standards. For further information, contact 
GSA, Contract Administration Division [Insert appropriate telephone 
number of FQC] Reports shall be forwarded to the ACO no later than the 
seventh workday of the succeeding month.
    (b) An initial supply of GSA Form 1678 will be forwarded to the 
Contractor with the contract. Additional copies of the form, if needed, 
may be obtained from the ACO, or reproduced by the Contractor.

                             (End of clause)



Sec. 552.243-70  Pricing of Adjustments.

    As prescribed in 543.205(a)(1), insert the following clause:

                    Pricing of Adjustments (APR 1989)

    When costs are a factor in any determination of a contract price 
adjustment, such costs shall be in accordance with the contract cost 
principles and procedures in Part 31 of the Federal Acquisition 
Regulation (48 CFR Part 31) in effect on the date of this contract.

                             (End of clause)



Sec. 552.243-71  Equitable Adjustments.

    As prescribed in 543.205(a)(2), insert the following clause:

                    Equitable Adjustments (APR 1984)

    (a) The provisions of the ``Changes'' clause prescribed by FAR 
52.243-4 are supplemented as follows:
    (1) Upon written request, the Contractor shall submit a proposal, in 
accordance with the requirements and limitations set forth in the 
``Equitable Adjustments'' clause, for work involving contemplated 
changes covered by the request. The proposal shall be submitted within 
the time limit indicated in the request or any extension of such time 
limit as may be subsequently granted. The Contractor's written statement 
of the monetary extent of a claim for equitable adjustment shall be 
submitted in the following form:
    (i) Proposals totaling $5,000 or less shall be submitted in the form 
of a lump sum proposal with supporting information to clearly relate 
elements of cost with specific items of work involved to the 
satisfaction of the Contracting Officer, or his/her authorized 
representative.
    (ii) For proposals in excess of $5,000, the claim for equitable 
adjustment shall be submitted in the form of a lump sum proposal 
supported with an itemized breakdown of all increases and decreases in 
the contract in at least the following detail:

                              Direct Costs


Sec. Material quantities by trades and unit costs

    (Manufacturing burden associated with material fabrication performed 
will be considered to be part of the material costs of the fabricated 
item delivered to the job site)


Sec. Labor breakdown by trades and unit costs

    (Identified with specific item of material to be placed or operation 
to be performed)


Sec. Construction equipment exclusively necessary for the change

Sec. Costs of preparation and/or revision to shop drawings resulting 
          from the change

Sec. Workers' Compensation and Public Liability Insurance

Sec. Employment taxes under FICA and FUTA

Sec. Bond Costs--when size of change warrants revision

                     Overhead, Profit and Commission

    (2) The allowable overhead shall be determined in accordance with 
the contract cost principles and procedures in Part 31 of the Federal 
Acquisition Regulation (48 CFR part 31) in effect on the date of this 
contract. The percentages for profit and commission shall be negotiated 
and may vary according to the nature, extent and complexity of the work 
involved, but in no case shall exceed the following unless the 
Contractor demonstrates entitlement to a higher percentage:

----------------------------------------------------------------------------------------------------------------
                                                                                     Profit         Commission
                                                           Overhead                (percent)        (percent)
----------------------------------------------------------------------------------------------------------------
To Contractor on work performed by other than  ...............................  ...............              10
 his own forces.
To first tier subcontractor on work performed  ...............................  ...............              10
 by his subcontractors.
To Contractor and/or the subcontractors for    To be Negotiated...............              10   ...............
 that portion of the work performed with
 their respective forces.
----------------------------------------------------------------------------------------------------------------


[[Page 273]]

    Not more than four percentages will be allowed regardless of the 
number of tier subcontractors. The Contractor shall not be allowed a 
commission on the commission received by a first tier subcontractor. 
Equitable adjustments for deleted work shall include credits for 
overhead, profit and commission. On proposals covering both increases 
and decreases in the amount of the contract, the application of overhead 
and profit shall be on the net change in direct costs for the Contractor 
or subcontractor performing the work.
    (3) The Contractor shall submit with the proposal his request for 
time extension (if any), and shall include sufficient information and 
dates to demonstrate whether and to what extent the change will delay 
the contract in its entirety.
    (4) In considering a proposal, the Government shall make check 
estimates in detail, utilizing unit prices where specified or agreed 
upon, with a view to arriving at an equitable adjustment.
    (5) After receipt of a proposal the Contracting Officer shall act 
thereon, within 30 days; provided however, that when the necessity to 
proceed with a change does not allow time properly to check a proposal 
or in the event of failure to reach an agreement on a proposal, the 
Government may order the Contractor to proceed on the basis of price to 
be determined at the earliest practicable date. Such price shall not be 
more than the increase or less than the decrease proposed.
    (6) If a mutually acceptable agreement cannot be reached, the 
Contracting Officer may determine the price unilaterally.
    (b) The provisions of the ``Differing Site Conditions'' clause 
prescribed by FAR 52.236-2 are supplemented as follows: The Contractor 
shall submit all claims for equitable adjustment in accordance with, and 
subject to the requirements and limitations set out in paragraph (a) of 
this ``Equitable Adjustments'' clause.

                             (End of clause)



Sec. 552.243-72  Modifications (Multiple Award Schedule).

    As prescribed in 543.205(b), insert the following clause:

           Modifications (Multiple Award Schedule) (JUL 2000)

    (a) General. The Contractor may request a contract modification by 
submitting a request to the Contracting Officer for approval, except as 
noted in paragraph (d) of this clause. At a minimum, every request shall 
describe the proposed change(s) and provide the rationale for the 
requested change(s).
    (b) Types of Modifications.
    (1) Additional items/additional SINs. When requesting additions, the 
following information must be submitted:
    (i) Information requested in paragraphs (1) and (2) of the 
Commercial Sales Practice Format to add SINs.
    (ii) Discount information for the new item(s) or new SIN(s). 
Specifically, submit the information requested in paragraphs 3 through 5 
of the Commercial Sales Practice Format. This information is the same as 
the initial award, a statement to that effect may be submitted instead.
    (iii) Information about the new item(s) or the item(s) under the new 
SIN(s) as described in 552.212-70, Preparation of Offer (Multiple Award 
Schedule) is required.
    (iv) Delivery time(s) for the new item(s) or the items under the new 
SIN(s) must be submitted in accordance with 552.211-78, Commercial 
Delivery Schedule (Multiple Award Schedule).
    (v) Production point(s) for the new item(s) or the item(s) under the 
new SIN(s) must be submitted if required by 52.215-6, Place of 
Performance.
    (vi) Hazardous material information (if applicable) must be 
submitted as required by 52.223-3 (ALT I), Hazardous Material 
Identification and Material Safety Data.
    (vii) Any information requested by 52.212-3(f), Offeror 
Representations and Certifications--Commercial Items, that may be 
necessary to assure compliance with FAR 52.225-1, Buy American Act--
Balance of Payments Programs--Supplies.
    (2) Deletions. The Contractor shall provide an explanation for the 
deletion. The Government reserves the right to reject any subsequent 
offer of the same item or a substantially equal item at a higher price 
during the same contract period, if the contracting officer finds the 
higher price to be unreasonable when compared with the deleted item.
    (3) Price Reduction. The Contractor shall indicate whether the price 
reduction falls under item (i), (ii), or (iii) of paragraph (c)(1) of 
the Price Reductions clause at 552.238-75. If the price reduction falls 
under item (i), the Contractor shall submit a copy of the dated 
commercial price list. If the price reduction falls under item (ii) or 
(iii), the Contractor shall submit a copy of the applicable price 
list(s), bulletins or letters or customer agreements which outline the 
effective date, duration, terms and conditions of the price reduction.
    (c) Effective Dates. The effective date of any modification is the 
date specified in the modification, except as otherwise provided in the 
Price Reductions clause at 552.238-75.
    (d) Electronic File Updates. The Contractor shall update electronic 
file submissions to reflect all modifications. For additional items or 
SINs, the Contractor shall obtain the contracting officer's approval 
before

[[Page 274]]

transmitting changes. Contract modifications will not be made effective 
until the Government receives the electronic file updates. The 
Contractor may transmit price reductions, item deletions, and 
corrections without prior approval. However, the Contractor shall notify 
the contracting officer as set forth in the Price Reductions clause at 
552.238-75.
    (e) Amendments to Paper Supply Schedule Price Lists.
    (1) The Contractor must provide supplements to its paper price 
lists, reflecting the most current changes. The Contractor may either:
    (i) Distribute a supplemental paper Federal Supply Schedule Price 
List within 15 workdays after the effective date of each modification.
    (ii) Distribute quarterly cumulative supplements. The period covered 
by a cumulative supplement is at the discretion of the Contractor, but 
may not exceed three calendar months from the effective date of the 
earliest modification. For example, if the first modification occurs in 
February, the quarterly supplement must cover February--April, and every 
3 month period after. The Contractor must distribute each quarterly 
cumulative supplement within 15 workdays from the last day of the 
calendar quarter.
    (2) At a minimum, the Contractor shall distribute each supplement to 
those ordering activities that previously received the basic document. 
In addition, the Contractor shall submit two copies of each supplement 
to the contracting officer, and one copy to the FSS Schedule Information 
Center.

                             (End of clause)

    Alternate I (Sep 1999). As prescribed in 543.205(b), substitute the 
following paragraph (d) for paragraph (d) of the basic clause:

    (d) Electronic File Updates. The Contractor shall update electronic 
file submissions to reflect all modifications. For additional items or 
SINs, the Contractor shall obtain the contracting officer's approval 
before transmitting changes. Contract modifications will not be made 
effective until the Government receives the electronic file updates. The 
Contractor may transmit price reductions and corrections without prior 
approval. However, the Contractor shall notify the contracting officer 
as set forth in the Price Reductions clause at 552.238-75.

[64 FR 37229, July 9, 1999, as amended at 65 FR 41379, July 5, 2000]



Sec. 552.246-17  Warranty of Supplies of a Noncomplex Nature

    As prescribed in 546.710(a), insert the following clause:

 Warranty of Supplies of a Noncomplex Nature (DEC 1990) (Deviation FAR 
                               52.246-17)

    (a) Definitions. ``Acceptance,'' as used in this clause, means the 
act of an authorized representative of the Government by which the 
Government assumes for itself, or as an agent of another, ownership of 
existing supplies, or approves specific services as partial or complete 
performance of the contract.
    ``Correction,'' as used in this clause, means the elimination of a 
defect.
    ``Supplies,'' as used in this clause, means the end item furnished 
by the Contractor and related services required under the contract. The 
word does not include ``data.''
    (b) Contractor's obligations.
    (1) Notwithstanding inspection and acceptance by the Government of 
supplies furnished under this contract, or any condition of this 
contract concerning the conclusiveness thereof, the Contractor warrants 
that for --------*--------
    (i) All supplies furnished under this contract will be free from 
defects in material or workmanship and will conform with the 
requirements of this contract; and
    (ii) The preservation, packaging, packing, and marking, and the 
preparation for, and method of, shipment of such applies will conform 
with the requirements of this contract.
    (2) When return, correction, or replacement is required, the 
Contractor shall be responsible for all costs attendant to the return, 
correction or replacement of the nonconforming supplies. Any removal in 
connection with the above shall be done by the Contractor at its 
expense. However, the Contractor's liability for the transportation 
charges shall not exceed an amount equal to the cost of transportation 
by the usual commercial method of shipment between the place of delivery 
specified in the contract and the Contractor's plant, and return.
    (3) Any supplies or parts thereof, corrected or furnished in 
replacement under this clause, shall also be subject to the terms of 
this clause to the same extent as supplies initially delivered. The 
warranty, with respect to supplies or parts thereof, shall be equal in 
duration to that in paragraph (b)(1) of this clause and shall run from 
the date of delivery of the corrected or replaced supplies.
    (4) All implied warranties of merchantability and ``fitness for a 
particular purpose'' are excluded from any obligation contained in this 
contract.
    (c) Remedies available to the Government.
    (1) The Contracting Officer shall give written notice to the 
Contractor of any breach of warranties in paragraph (b)(1) of this 
clause with --------*--------. This notice shall contain information 
concerning the deficiencies found, the location of the nonconforming 
supplies, and the quantity involved.

[[Page 275]]

    (2) Within a reasonable time after the notice, the Contracting 
Officer may either--
    (i) Require, by written notice, the prompt correction or replacement 
of any supplies or parts thereof (including preservation, packaging, 
packing, and marking) that do not conform with the requirements of this 
contract within the meaning of paragraph (b)(1) of this clause; or
    (ii) Retain such supplies and reduce the contract price by an amount 
equitable under the circumstances. When the nature of the defect in the 
nonconforming item is such that the defect affects an entire batch or 
lot of material, then the equitable price adjustment shall apply to the 
entire batch or lot of material from which the nonconforming item was 
taken.
    (3)(i) If the contract provides for inspection of supplies by 
sampling procedures, conformance of supplies or components subject to 
warranty action shall be determined by the applicable sampling 
procedures in the contract. The Contracting Officer--
    (A) May, for sampling purposes, group any supplies delivered under 
this contract;
    (B) Shall require the size of the sample to be that required by 
sampling procedures specified in the contract for the quantity of 
supplies on which warranty action is proposed;
    (C) May project warranty sampling results over supplies in the same 
shipment or other supplies contained in other shipments even though all 
of such supplies are not present at the point of reinspection; provided, 
that the supplies remaining are reasonably representative of the 
quantity on which warranty action is proposed; and
    (D) Need not use the same lot size as on original inspection or 
reconstitute the original inspection lots.
    (ii) Within a reasonable time after notice of any breach of the 
warranties specified in paragraph (b)(1) of this clause, the Contracting 
Officer may exercise one or more of the following options:
    (A) Require an equitable adjustment in the contract price for any 
group of supplies.
    (B) Screen the supplies grouped for warranty action under this 
clause at the Contractor's expense and return all nonconforming supplies 
to the Contractor for correction or replacement.
    (C) Require the Contractor to screen the supplies at locations 
designated by the Government within the continental United States and to 
correct or replace all nonconforming supplies.
    (D) Return the supplies grouped for warranty action under this 
clause to the Contractor (irrespective of the f.o.b. point or the point 
of acceptance) for screening and correction or replacement. All costs 
incurred by the Government in returning the nonconforming supplies, 
including costs to the freight carrier resulting from the Contractor's 
refusal to accept their return, shall be for the Contractor's account.
    (4)(i) The Contracting Officer may, by contract or otherwise, 
correct or replace the nonconforming supplies with similar supplies from 
another source and charge to the Contractor the cost occasioned to the 
Government thereby if the Contractor--
    (A) Fails to make redelivery of the corrected or replaced supplies 
within the time established for their return; or
    (B) Fails either to accept return of the nonconforming supplies or 
fails to make progress after their return to correct or replace them so 
as to endanger performance of the delivery schedule, and in either of 
these circumstances does not cure such failure within a period of 10 
days (or such longer period as the Contracting Officer may authorize in 
writing) after receipt of notice from the Contracting Officer specifying 
such failure.
    (ii) Instead of correction or replacement by the Government, the 
Contracting Officer may require an equitable adjustment of the contract 
price for all nonconforming supplies, including batch or lot materials 
which either have been consumed or other disposition has been made. In 
addition, if the Contractor fails to furnish timely disposition 
instructions, the Contracting Officer may return the supplies for 
screening and correction or replacement under subparagraph (c)(3)(ii)(D) 
above; store the nonconforming supplies for the Contractor's account; 
sell the nonconforming supplies to the highest bidder on the open market 
and apply the proceeds against the accumulated storage and other costs, 
including the cost of the sale; or otherwise dispose of the 
nonconforming supplies for the Contractor's account in a reasonable 
manner. The Government is entitled to reimbursement from the Contractor, 
or from the proceeds of such disposal, for the reasonable expenses of 
the care and disposition of the nonconforming supplies, as well as for 
excess costs incurred or to be incurred.
    (5) The rights and remedies of the Government provided in this 
clause are in addition to and do not limit any rights afforded to the 
Government by any other clause of this contract.
    (6) Unless otherwise provided, this warranty is applicable both 
within and outside the continental limits of the United States.
    (7) In addition to other marking requirements of this contract, the 
Contractor shall stamp or mark the supplies delivered or otherwise 
furnish notice with the supplies of the existence of the warranty. The 
marking should briefly include (i) a statement that the warranty exists, 
(ii) the substance of the warranty, (iii) its duration, and (iv) whom to 
notify if the supplies are found to be defective.

[[Page 276]]

                             (End of clause)

    * State the specific period of time after delivery or the specified 
event whose occurrence will terminate the warranty period; e.g., the 
number of miles or hours of use, or combination of any applicable event 
or periods of time.
    ** Insert specific period of time; e.g., ``45 days from the last 
delivery under this contract,'' or ``45 days after discovery of the 
defect.'' The number of days specified shall be no less than 30.
    Alternate I (DEC 1990). As prescribed in 546.710(a)(1), substitute 
the following for paragraph (b)(1) of the basic clause and delete 
paragraph (b)(4) of the basic clause.

    (1) Notwithstanding inspection and acceptance by the Government of 
supplies furnished under this contract, or any condition of this 
contract concerning the conclusiveness thereof, the Contractor warrants 
that for --------*-------- all supplies furnished--
    (i) Are of a quality to pass without objection in the trade under 
the contract description;
    (ii) Are fit for the ordinary purposes for which the supplies are 
used;
    (iii) Are within the variations permitted by the contract, and are 
of an even kind, quality, and quantity within each unit and among all 
units;
    (iv) Are adequately contained, packaged, and marked as the contract 
may require; and
    (v) Conform to the promises or affirmations of fact made on the 
container.

    Alternate II (DEC 1990). As prescribed in 546.710(a)(2), substitute 
the following paragraph for paragraph (b)(1) of the basic clause:

    (1) Notwithstanding inspection and acceptance by the Government of 
supplies furnished under this contract, or any condition of this 
contract concerning the conclusiveness thereof, the Contractor warrants 
that for --------*-------- all supplies furnished--
    (i) Conform to the specifications except that in the case of solvent 
systems, the viscosity may exceed the specified maximum by 10 Kreb 
Units, unless otherwise specified elsewhere in this contract; and
    (ii) Are suitable for their intended purpose as stated in this 
contact.

    Alternate III (DEC 1990). As prescribed in 546.710(a)(3), substitute 
the following for paragraph (b)(1) of the basic clause, redesignate 
paragraph (c) of the basic clause as paragraph (d), and add the 
following as paragraph (c) in the basic clause:

    (1) Notwithstanding inspection and acceptance by the Government of 
supplies furnished under this contract, or any condition of this 
contract concerning the conclusiveness thereof, the Contractor warrants 
that for --------*--------, beginning with the first day of the first 
full month following the month of manufacture marked on the container, 
all supplies furnished retain their original characteristics to the 
extent that the supplies remain suitable for the intended use as stated 
in this contract (i) under actual application conditions or (ii) when 
tested in accordance with requirements stated elsewhere in this 
contract.
    (c) Government surveillance and testing.
    (1) During this period, surveillance will be maintained on supplies 
warehoused in Government facilities; and the supplies will be tested 
periodically to determine their suitability for intended use. Sampling 
for surveillance testing will be in accordance with Military Standard 
No. 105, and such testing will be made after NORMAL MIXING, STIRRING, OR 
SHAKING, in accordance with directions either furnished with the 
supplies or as shown in the applicable specifications.
    (2) Surveillance testing will be based on storage stability 
requirements set forth in the contract specification, or purchase 
description on the basis of salient characteristics (e.g., viscosity or 
sag flow, curing time, strip adhesion or tensile shear, etc.) 
established by GSA as appropriate to determine suitability for intended 
use. In the case of brand name items not covered by detailed purchase 
descriptions, surveillance testing may be based on salient 
characteristics included in the manufacturer's data sheets. If storage 
stability requirements showing allowable variations are not included in 
applicable specifications or elsewhere in the contract, material will be 
considered suitable for intended use if the salient characteristics vary 
not more than 20 percent from the originally specified values (i.e., 
those applicable to acceptance testing of the supplies) for noncritical 
end-use items, and not more then 10 percent for critical end-use items.



Sec. 552.246-70  Source Inspection by Quality Approved Manufacturer.

    As prescribed in 546.302-70, insert the following clause:

      Source Inspection by Quality Approved Manufacturer (SEP 1999)

    (a) Inspection system and inspection facilities.
    (1) The inspection system maintained by the Contractor under the 
Inspection of Supplies--Fixed Price clause (FAR 52.246-2) of this 
contract shall be maintained throughout the contract period and shall 
comply with all requirements of editions in effect on the date of the 
solicitation of either Federal

[[Page 277]]

Standard 368 or the International Organization for Standardization (ISO) 
Standard 9001 (ANSI/ASQC Q 91) (Quality Systems--Model for Quality 
Assurance in Design/Development, Production, Installation and 
Servicing), or ISO Standard 9002 (ANSI/ASQC Q 92) (Quality Systems--
Model for Quality Assurance in Production and Installation). The ISO 
9000 family of standards is a set of worldwide standards used to 
document, implement and demonstrate quality assurance systems. When 
using the ISO option the Contractor's quality system must be registered 
by a third party registrar accredited by either the Registrar 
Accreditation Board (RAB) or an organization recognized as equivalent. A 
written description of the inspection system shall be made available to 
the Government before contract award. The Contractor shall immediately 
notify the Contracting Officer and the designated GSA quality assurance 
office of any changes made in the inspection system during the contract 
period. As used herein, the term ``inspection system'' means the 
Contractor's own facility or any other facility acceptable to the 
Government that will be used to perform inspections or tests of 
materials and components before incorporation into end articles and for 
inspection of such end articles before shipment. When the manufacturing 
plant is located outside of the United States, the Contractor shall 
arrange delivery of the items from a plant or warehouse located in the 
United States (including Puerto Rico and the Virgin Islands) equipped to 
perform all inspections and tests required by the contract or 
specifications to evidence conformance therewith, or shall arrange with 
a testing laboratory or other facility in the United States, acceptable 
to the Government, to perform the required inspections and tests.
    (2) In addition to the requirements in Federal Standard 368, ISO 
9001 or ISO 9002 records shall include the date when inspection and 
testing were performed. These records shall be available for (i) 3 years 
after final payment; or (ii) 4 years from the end of the Contractor's 
fiscal year in which the record was created, whichever period expires 
first.
    (3) Offerors are required to specify, in the space provided 
elsewhere in this solicitation, the name and address of each 
manufacturing plant or other facility where supplies will be available 
for inspection, indicating the item number(s) to which each applies.
    (4) Within 10 calendar days after receipt of the written notice of 
award, the Contractor shall provide the Administrative Contracting 
Officer with the name of the individual and an alternate that will be 
responsible for inspecting each shipment under this contract.
    (b) Inspection and receiving reports.
    (1) For each shipment released, one of the officials named by the 
Contractor under paragraph (a)(4) above shall sign a Quality Approved 
Manufacturer Certificate certifying that supplies have been inspected 
and found to comply with contract requirements. The certification shall 
read as follows:
    ``I certify that all items in this shipment have been listed herein, 
and have been inspected and found to comply with all requirements of the 
contract.''

                    Signature of Certifying Official

    (2) For shipments made to military facilities, the Contractor shall 
prepare and distribute the DD Form 250, Material Inspection and 
Receiving Report, or computer formatted equivalent of the form not later 
than the close of business the workday following shipment. The 
certification above shall be placed in block 16 on this form. The 
Contractor will be provided a supply of the DD Form 250 with complete 
instructions for preparation and distribution.
    (3) For shipments made to civilian facilities only, the Contractor 
shall prepare and distribute not later than the close of business the 
workday following shipment a certification of inspection and conformance 
for the identified items, in accordance with instructions furnished at 
the time of award. The Contractor may furnish the requisite information 
on the DD Form 250 or computer formatted equivalent, company letterhead, 
or invoice document.
    (c) Inspection by Government personnel.
    (1) Although the Government will normally rely upon the Contractor's 
certification as to the quality of supplies shipped, it reserves the 
right under the Inspection of Supplies--Fixed Price clause to inspect 
and test all supplies called for by this contract, before acceptance, at 
all times and places, including the point of manufacture. When the 
Government notifies the Contractor of its intent to inspect supplies 
before shipment, the Contractor shall notify or arrange for 
subcontractors to notify the designated GSA quality assurance office 7 
workdays before the date when supplies will be ready for inspection. 
Shipment shall not be made until inspection by the Government is 
completed and shipment is authorized by the Government.
    (2) Government inspection responsibility will be assigned the GSA 
quality assurance office which has jurisdiction over the State in which 
the Contractor's or subcontractor's plant or other designated point for 
inspection is located.
    (3) During the contract period, a Government representative may 
periodically select samples of supplies produced under this contract for 
verification inspection and testing. Samples sent to a Government 
testing facility will be disposed of as follows: Samples from an 
accepted lot, not damaged in the testing process, will be returned 
promptly to the Contractor after completion of tests.

[[Page 278]]

Samples damages in the testing process will be disposed of as requested 
by the Contractor. Samples from a rejected lot will be returned to the 
Contractor or disposed of in a time and manner agreeable to both the 
Contractor and the Government.
    (d) Quality deficiencies.
    (1) Notwithstanding any other clause of this contract concerning the 
conclusiveness of acceptance by the Government, any supplies or 
production lots shipped under this contract found to be defective in 
material or workmanship, or otherwise not in conformity with the 
requirements of this contract within a period of --------*-------- 
months after acceptance shall, at the Government's option, be replaced, 
repaired or otherwise corrected by the Contractor at no cost to the 
Government within 30 calendar days (or such longer period as the 
Government may authorize in writing) after receipt of notice to replace 
or correct. The Contractor shall remove, at its expense, supplies 
rejected or required to be replaced, repaired or corrected. When the 
nature of the defect affects an entire batch or lot of supplies, and the 
Contracting Officer determines that correction can best be accomplished 
by retaining the nonconforming supplies and reducing the contract price 
by an amount equitable under the circumstances, then the equitable price 
adjustment shall apply to the entire batch or lot of supplies from which 
the nonconforming item was taken.
    (2) If supplies in process, shipped, or awaiting shipment to fill 
Government orders are found not to comply with contract requirements, or 
if deficiencies in either plant quality or process controls are found, 
the Contractor may be issued a Quality Deficiency Notice (QDN). Upon 
receipt of a QDN, the Contractor shall take immediate corrective action 
and shall suspend shipment of the supplies covered by the QDN until such 
time as corrective action has been completed. The Contractor shall 
notify the GSA quality assurance office, within 5 workdays, of 
corrective action taken or to be taken to permit on site verification by 
a Government representative. Shipments of nonconforming supplies will be 
returned at the Contractor's expense and may constitute cause for 
termination. Delays due to the insurance of a QDN do not constitute 
excusable delay under the Default clause. Failure to complete corrective 
action in a timely manner may result in termination of this contract.
    (3) This contract may be terminated for default if subsequent 
Government inspection discloses that plant quality or process controls 
are not being maintained, supplies which do not meet the requirements of 
the specification are being shipped, or there is failure to comply with 
any other requirement of this clause.
    (e) Additional cost for inspection and testing. The Contractor will 
be charged for any additional cost of inspection/testing or 
reinspecting/retesting supplies for the reasons stated in paragraph (e) 
of FAR 52.246-2, Inspection of Supplies--Fixed Price. When inspection or 
testing is performed by or under the direction of GSA, charges will be 
at the rate of $--------*-------- per man-hour or fraction thereof if 
the inspection is at a GSA distribution center; $--------*-------- per 
man-hour or fraction thereof, plus travel costs incurred, if the 
inspection is at any other location; and $--------*-------- per man-hour 
or fraction thereof for laboratory testing, except that when a testing 
facility other than a GSA laboratory performs all or part of the 
required tests, the Contractor shall be assessed the actual cost 
incurred by the Government as a result of testing at such facility. When 
inspection is performed by or under the direction of any agency other 
than GSA, the charges indicated above may be used, or the agency may 
assess the actual cost of performing the inspection and testing.
    (f) Responsibility for rejected supplies. When the Contractor fails 
to remove or provide instructions for the removal of rejected supplies 
under paragraph (d) above, pursuant to the Contracting Officer's 
instructions, the Contractor shall be liable for all costs incurred by 
the Government in taking such measures as are expedient to avoid 
unnecessary loss to the Contractor. In addition to the remedies provided 
in FAR 52.246-2, supplies may be--
    (1) Stored for the Contractor's account;
    (2) Reshipped to the Contractor at its expense (any additional 
expense incurred by the Government or the freight carrier caused by the 
refusal of the Contractor to accept their return also shall be for the 
Contractor's account); or
    (3) Sold to the highest bidder on the open market and the proceeds 
applied against the accumulated storage and other costs, including the 
cost of the sale.
    (g) Subcontracting requirements. The Contractor shall insert in any 
subcontracts the inspection or testing provisions set forth in 
paragraphs (a) through (d) of this clause and the Inspection of 
Supplies--Fixed Price clause of this contract. The Contractor shall be 
responsible for compliance by any subcontractor with the provisions set 
forth in paragraphs (a) through (d) of this clause and the Inspection of 
Supplies--Fixed Price clause.

                             (End of clause)

    * Normally insert 12 months as the period during which defective or 
otherwise nonconforming supplies must be replaced. However, when the 
supplies being bought have a shelf life of less than 1 year, you should 
use the shelf-life period, or in the instance where you reasonably 
expect a

[[Page 279]]

longer period to be available, you should use the longer period.
    ** The rates to be inserted are established by the Commissioner of 
the Federal Supply Service or a designee.



Sec. 552.246-71  Source Inspection by Government.

    As prescribed in 546.302-71, insert the following clause:

               Source Inspection by Government (SEP 1999)

    (a) Inspection by Government personnel.
    (1) Supplies to be furnished under this contract will be inspected 
at source by the Government before shipment from the manufacturing plant 
or other facility designated by the Contractor, unless the Contractor is 
otherwise notified in writing by the Contracting Officer or a designated 
representative. Notwithstanding the foregoing, the Government may 
perform any or all tests contained in the contract specifications at a 
Government facility without prior written notice by the Contracting 
Officer before release of the supplies for shipment. Samples sent to a 
Government resting facility will be disposed of as follows: Samples from 
an accepted lot, not damaged in the testing process, will be returned 
promptly to the Contractor after completion of tests. Samples damaged in 
the testing process will be disposed of as requested by the Contractor. 
Samples from a rejected lot will be returned to the Contractor or 
disposed of in a time and manner agreeable to both the Contractor and 
the Government.
    (2) Government inspection responsibility will be assigned to the GSA 
quality assurance office which has jurisdiction over the State in which 
the Contractor's subcontractor's plant or other designated point for 
inspection is located. The Contractor shall notify or arrange for 
subcontractors to notify the designated GSA quality assurance office 7 
workdays before the date when supplies will be ready for inspection. 
Shipment shall not be made until after inspection by the Government is 
completed and shipment is authorized by Government.
    (b) Inspection and receiving reports. For each shipment, the 
Contractor shall be responsible for preparation and distribution of 
inspection documents as follows: (1) DD Form 250, Material Inspection 
and Receiving Report, or computer formatted equivalent for deliveries to 
military agencies; or (2) GSA Form 308, Notice of Inspection for 
deliveries to GSA or other civilian agencies. When required, the 
Contractor will be furnished a supply of GSA Form 308 and/or DD Form 
250, and complete instructions for their reparation and distribution.
    (c) Inspection facilities.
    (1) The inspection system required to be maintained by the 
Contractor in accordance with FAR 52.246-2, Inspection of Supplies--
Fixed Price, may be the Contractor's own facilities or any other 
facilities acceptable to the Government. The facilities shall be 
utilized to perform all inspections and tests of materials and 
components before incorporation into end articles, and for the 
inspection of such end articles before shipment. The Government reserves 
the right to evaluate the acceptability and effectiveness of the 
Contractor's inspection system before award and periodically during the 
contract period.
    (2) Offerors are required to specify, in the spaces provided 
elsewhere in the solicitation, the name and address of each 
manufacturing plant or other facility where supplies will be available 
for inspection, indicating the item number(s) to which each applies.
    (3) The Contractor shall deliver the items specified in this 
contract from a plant or warehouse located within the United States 
(including Puerto Rico and the Virgin Islands) that is equipped to 
perform all inspections and tests required by this contract or 
specifications to evidence conformance therewith, or shall arrange with 
a testing laboratory or other facility in the United States, acceptable 
to the Government, to perform the required inspections and tests.
    (d) Availability of records.
    (1) In addition to any other requirement of this contract, the 
Contractor shall maintain records showing the following information for 
each order received under the contract: (i) order number; (ii) date 
order received by the Contractor; (iii) quantity ordered; (iv) date 
scheduled into production; (v) batch or lot number, if applicable; (vi) 
date inspected and/or tested; (vii) date available for shipment; (viii) 
date shipped or date service completed; and (ix) National Stock Number 
(NSN), or if none is provided in the contract, the applicable item 
number or other contractual identification.
    (2) These records should be maintained at the point of source 
inspection and shall be available to the Contracting Officer, or an 
authorized representative, for (i) 3 years after final payment; or (ii) 
4 years from the end of the Contractor's fiscal year in which the record 
was created, whichever period expires first.
    (e) Additional cost for inspection and testing. The Contractor will 
be charged for any additional cost for inspecting/testing or 
reinspection/retesting supplies for the reasons stated in paragraph (e) 
of FAR 52.246-2, Inspection of Supplies--Fixed Price. When inspection or 
testing is performed by or under the direction of GSA, charges will be 
at the rate of $--------*-------- per man-hour or fraction thereof if 
the inspection is at a GSA distribution center; $--------*-------- per 
man-

[[Page 280]]

hour or fraction thereof, plus travel costs incurred, if the inspection 
is at any other location; and $--------*-------- per man-hour or 
fraction thereof for laboratory testing, except that when a testing 
facility other than a GSA laboratory performs all or part of the 
required tests, the Contractor shall be assessed the actual cost 
incurred by the Government as a result of testing at such facility. When 
inspection is performed by or under the direction of any agency other 
than GSA, the charges indicated above may be used, or the agency may 
assess the actual cost of performing the inspection and testing.
    (f) Responsibility for rejected supplies. When the Contractor fails 
to remove or provide instructions for the removal of rejected supplies 
under FAR 52.246-2(h) pursuant to the Contracting Officer's 
instructions, the Contractor shall be liable for all costs incurred by 
the Government in taking such measures as are expedient to avoid 
unnecessary loss to the Contractor. In addition to the remedies provided 
in FAR 52.246-2, supplies may be--
    (1) Stored for the Contractor's account;
    (2) Reshipped to the Contractor at its expense (any additional 
expense incurred by the Government or the freight carrier caused by the 
refusal of the Contractor to accept their return also shall be for the 
Contractor's account); or
    (3) Sold to the highest bidder on the open market and the proceeds 
applied against the accumulated storage and other costs, including the 
cost of the sale.

                             (End of clause)

    * The rates to be inserted are established by the Commissioner of 
the Federal Supply Service or a designee.



Sec. 552.246-72  Final Inspection and Tests.

    As prescribed in 546.312, insert the following clause:

                  Final Inspection and Tests (SEP 1999)

    The Contractor shall give written notice to the Contracting Officer 
at least 10 calendar days before the date the work will be completed and 
ready for final inspection and tests. Final inspection and tests will 
begin within 10 calendar days after the date specified in the 
Contractor's notice unless the Contracting Officer determines that the 
work is not ready for final inspection and so informs the Contractor.

                             (End of clause)



Sec. 552.246-73  Warranty--Multiple Award Schedule.

              Warranty--Multiple Award Schedule (MAR 2000)

    (a) Applicable to domestic locations. Unless specified otherwise in 
this contract, the Contractor's standard commercial warranty as stated 
in the Contractor's commercial price list applies to this contract.
    (b) Applicable to overseas destinations. Unless specified otherwise 
in this contract, the Contractor's standard commercial warranty as 
stated in the commercial price list applies to this contract, except as 
follows:
    (1) The Contractor must provide, at a minimum, a warranty on all 
non-consumable parts for a period of 90 days from the date that the 
Government accepts the product.
    (2) The Contractor must supply parts and labor required under the 
warranty provisions free of charge.
    (3) The Contractor must bear the transportation costs of returning 
the products to and from the repair facility, or the costs involved with 
Contractor personnel traveling to The Government facility for the 
purpose of repairing the product onsite, during the 90-day warranty 
period.

                             (End of clause)

    Alternate I (MAY 2003). As prescribed in 546.710(b), substitute the 
following paragraphs (b)(1) and (b)(3) for paragraphs (b)(1) and (b)(3) 
of the basic clause:

    (b)(1) The Contractor must provide, at a minimum, a warranty on all 
non-consumable parts for a period of 90 days from the date that the 
ordering activity accepts the product.
    (b)(3) The Contractor must bear the transportation costs of 
returning the products to and from the repair facility, or the costs 
involved with Contractor personnel traveling to the ordering activity 
facility for the purpose of repairing the product onsite, during the 90-
day warranty period.

[65 FR 11248, Mar. 2, 2000, as amended at 68 FR 24382, May 7, 2003]



Sec. 552.246-74  [Reserved]



Sec. 552.246-75  Guarantees.

    As prescribed in 546.710(c), insert the following clause.

                          Guarantees (MAY 1989)

    (a) Unless otherwise provided in the specifications, the Contractor 
guarantees all

[[Page 281]]

work to be in accordance with contract requirements and free from 
defective or inferior materials, equipment, and workmanship for 1 year 
after the date of final acceptance or the date the equipment or work was 
placed in use by the Government, whichever occurs first.
    (b)(1) If, within any guarantee period, the Contracting Officer 
finds that guaranteed work requires repair or change because of 
defective or inferior materials, equipment, or workmanship or is not in 
accordance with contract requirements, the Contracting Officer shall 
notify the Contractor in writing. The Contractor shall promptly, and 
without additional expense to the Government, correct:
    (i) All guaranteed work;
    (ii) All damage to equipment, the site, the building or its contents 
resulting from the unsatisfactory guaranteed work; and
    (iii) Any work, materials, and equipment that are disturbed in 
fulfilling the guarantee, including any disturbed work, materials, and 
equipment that may have been guaranteed under another contract.
    (2) If the Contractor fails to proceed promptly in accordance with 
the guarantee, the Government may have such work performed at the 
expense of the Contractor.
    (c) Any special guarantees that may be required under the contract 
will be subject to paragraphs (a) and (b), insofar as they do not 
conflict with special guarantees.
    (d) The Contractor shall furnish to the Government: (1) Each 
transferable guarantee or warranty of equipment, materials, or 
installation furnished by any manufacturer, supplier, or installer in 
the ordinary course of business; (2) All information required to make 
such guarantee or warranty legally binding and effective; and (3) The 
information and the guarantee or warranty in sufficient time to permit 
the Government to meet any time limit specified in the guarantee or 
warranty or, if no time limit is specified, prior to completion and 
acceptance of all work under this contract.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 65 FR 11249, Mar. 2, 2000]



Sec. 552.246-76  Warranty of Pesticides.

    As prescribed in 546.710(d), insert the following clause:

                    Warranty of Pesticides (MAY 1989)

    (a) Notwithstanding acceptance of pesticides by the Government, the 
Contractor warrants that for 1 year after the date of shipment, all 
pesticides furnished under this contract shall meet the requirements of 
Pub. L. 92-516, as amended, and shall be registered with the 
Environmental Protection Agency (EPA).
    (b) If EPA takes action to stop sale, stop use, remove, seize, or 
cancel registration of a pesticide within 1 year after date of shipment, 
the Contractor shall immediately notify the Contracting Officer. The 
notification will include: (1) contract number; (2) identification of 
the pesticide; (3) reason for the EPA action against the pesticide; and 
(4) list of Government agencies and addresses to which it was delivered.

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 65 FR 11249, Mar. 2, 2000]



Sec. 552.247-70  Placarding Railcar Shipments.

    As prescribed in 547.305(a), insert the following clause:

                 Placarding Railcar Shipments (MAY 1989)

    When a railcar is loaded in such a manner that it can be or should 
be unloaded from only one side, the Contractor shall place on the 
appropriate railcar door a placard reading ``UNLOAD FROM THIS SIDE'' and 
on the opposite door a placard reading ``UNLOAD FROM OTHER SIDE.''

                             (End of clause)



Sec. 552.247-71  Diversion of Shipment Under F.O.B. Destination 

Contracts.

    As prescribed in 547.305(b), insert the following clause:

   Diversion of Shipment Under F.O.B. Destination Contracts (MAR 2000)

    (a) Notwithstanding paragraph (c) of the clause in this contract 
titled 52.212-4, Contract Terms and Conditions--Commercial Items, the 
Government has the unilateral right to make changes at any time within 
the general scope of this contract in either the:
    (1) Method of shipment or packing.
    (2) Place of delivery.
    (b) If any such change causes an increase or decrease in the cost of 
this contract, the Contracting Officer shall make an equitable 
adjustment in the contract price, the delivery schedule, or both. The 
Contractor must assert its right to an adjustment under this clause 
within 30 days from the date of receipt of a delivery order.
    (c) The Government shall make no adjustment when supplies are 
identically priced for delivery regionally or nationally and the place 
of delivery is changed within the area to which the identical price 
applies. In all other cases, adjustments for changes in

[[Page 282]]

transportation costs under this clause shall be determined as follows:
    (1) If the contractor ships by contract or common carrier, price 
adjustments shall be determined by comparing the cost of shipments to 
the new destination(s), as evidenced by copy of paid freight bills 
supplied by the Contractor with the invoice, to one of the following:
    (i) The cost of shipments to the standard contract destination, as 
evidenced by copy of appropriate paid freight bills supplied by the 
Contractor.
    (ii) If no shipments have been made to the standard contract 
destination, the cost as evidenced by the applicable rates of a common 
or contract carrier. If carrier rates are not publicly filed with a 
regulatory body (e.g., interstate shipments moving by rail piggyback 
service), the Contractor shall provide a copy of the contract, letter 
agreement, or other written communication from the carrier(s) quoting 
the rates/charges that would have applied for shipments to the standard 
contract destination.
    (2) If (i) shipments to the new destination are made by the 
Contractor's owned or leased trucks or (ii) shipments to the original 
destination were or would have been made by the Contractor's owned or 
leased trucks, the Government shall determine the adjustment by 
substituting a rate equal to 70 percent of the lowest applicable rate 
published in common carrier rates as of the date of shipment for the 
Contractor's actual rate or contemplated transportation costs.
    (d) If the copies of paid freight bills for a diverted shipment do 
not show, or make readily available, each of the following items,the 
Contractor shall supply a written statement showing the item(s):
    (1) Full name of each carrier in the routing.
    (2) Number of containers.
    (3) Gross shipping weight.
    (4) Actual date of shipping.
    (5) Freight description for the supplies as indicated in the 
``National Motor Freight Classification'' or the ``Uniform Freight 
Classification'' (Rail).

                             (End of clause)

[64 FR 37229, July 9, 1999, as amended at 65 FR 11249, Mar. 2, 2000]



Sec. 552.249-70  Termination for Convenience of the Government (Fixed 

Price) (Short Form).

    As prescribed in 549.502(a) insert the following clause:

Termination for Convenience of the Government (Fixed-Price) (Short Form) 
            (MAY 1988) (Deviation FAR 52.249-1 and 52.249-2)

    (a) If the Government terminates this contract for convenience, the 
rights of the Government and the Contractor shall be determined under 
paragraph (b) unless there is a termination liability schedule, in which 
case the rights of the parties shall be determined under paragraph (c).
    (b) The clause at [Contracting Officer inserts 52.249-1 or 52.249-2, 
as applicable] of the FAR shall apply to the supply portion of the 
contract and the clauses at 52.249-4 of the FAR shall apply to the 
service portion of the contract.
    (c) If the Contractor specifies a schedule of termination liability 
charges that would be incurred by the Government if the Government 
terminates this lease contract without taking title to the equipment, 
the payment of such charges shall be the only responsibility of the 
Government to compensate the Contractor for such termination; except 
that, there shall be no termination liability for equipment installed 
after termination of this contract.

                             (End of clause)



Sec. 552.249-71  Submission of Termination Liability Schedule.

    As prescribed in 549.502(b), insert the following clause:

         Submission of Termination Liability Schedule (MAY 1989)

    (a) An offeror may submit, as part of its proposal, a termination 
liability schedule to be applied if any resultant contract is terminated 
by the Government for reasons other than default. The offeror shall 
provide and explain the amount and method of computation of the 
termination liability charge(s).
    (b) If submitted, the termination liability schedule will be 
incorporated into Part I, Section B of the contract document. If a 
termination liability schedule is not submitted and the Government 
terminates any resultant contract for its convenience, the rights of the 
parties shall be determined under paragraph (b) of the GSAR Termination 
for Convenience of the Government clause at 552.249-70.
    (c) Any termination liability charges existing at the end of the 
evaluated contract period will be considered in the evaluation of 
offers.

[[Page 283]]

                             (End of clause)



Sec. 552.252-5  Authorized Deviations in Provisions.

    As prescribed in 552.107-70(a), insert the following provision:

 Authorized Deviations in Provisions (Deviation FAR 52.252-5) (SEP 1999)

    (a) Deviations to FAR provisions.
    (1) This solicitation indicates any authorized deviation to a 
Federal Acquisition Regulation (48 CFR chapter 1) provision by the 
addition of ``(DEVIATION)'' after the date of the provision, if the 
provision is not published in the General Services Administration 
Acquisition Regulation (48 CFR chapter 5).
    (2) This solicitation indicates any authorized deviation to a 
Federal Acquisition Regulation (FAR) provision that is published in the 
General Services Administration Acquisition Regulation by the addition 
of ``(DEVIATION (FAR provision no.))'' after the date of the provision.
    (b) Deviations to GSAR provisions. This solicitation indicates any 
authorized deviation to a General Services Administration Acquisition 
Regulation provision by the addition of ``(DEVIATION)'' after the date 
of the provision.
    (c) ``Substantially the same as'' provisions. Changes in wording of 
provisions prescribed for use on a ``substantially the same as'' basis 
are not considered deviations.

                           (End of provision)



Sec. 552.252-6  Authorized Deviations in Clauses.

    As prescribed in 552.107-70(b), insert the following clause:

  Authorized Deviations in Clauses (Deviation FAR 52.252-6) (SEP 1999)

    (a) Deviations to FAR clauses.
    (1) This solicitation or contract indicates any authorized deviation 
to a Federal Acquisition Regulation (48 CFR chapter 1) clause by the 
addition of ``(DEVIATION)'' after the date of the clause, if the clause 
is not published in the General Services Administration Acquisition 
Regulation (48 CFR chapter 5).
    (2) This solicitation indicates any authorized deviation to a 
Federal Acquisition Regulation (FAR) clause that is published in the 
General Services Administration Acquisition Regulation by the addition 
of ``(DEVIATION (FAR clause no.))'' after the date of the clause.
    (b) Deviations to GSAR clauses: This solicitation indicates any 
authorized deviation to a General Services Administration Acquisition 
Regulation clause by the addition of ``(DEVIATION)'' after the date of 
the clause.
    (c) ``Substantially the same as'' clauses. Changes in wording of 
clauses prescribed for use on a ``substantially the same as'' basis are 
not considered deviations.

                             (End of clause)



Sec. 552.270-1  Instructions to Offerors--Acquisition of Leasehold 

Interests in Real Property.

    As prescribed in 570.602, insert the following provision:

  Instructions to Offerors--Acquisition of Leasehold Interests in Real 
                           Property (MAR 1998)

    (a) Definitions. As used in this provision--
    ``Discussions'' are negotiations that occur after establishment of 
the competitive range that may, at the contracting Officer's discretion, 
result in the offeror being allowed to revise its proposal.
    ``In Writing'' or ``Written'' means any worded or numbered 
expression which can be read, reproduced, and later communicated, and 
includes electronically transmitted and stored information.
    ``Proposal modification'' is a change made to a proposal before the 
solicitation's closing date and time, or made in response to an 
amendment, or made to correct a mistake at any time before award.
    ``Proposal revision'' is a change to a proposal made after the 
solicitation closing date, at the request of as allowed by a Contracting 
Officer as the result or of negotiations.
    ``Time,'' if stated as a number of days, is calculated using 
calendar days, unless otherwise specified, and will include Saturdays, 
Sundays, and legal holidays. However, if the last day falls on a 
Saturday, Sunday, or legal holiday, then the period shall include the 
next working day.
    (b) Amendments to solicitations. If this solicitation is amended, 
all terms and conditions that are not amended remain unchanged. Offerors 
shall acknowledge receipt of any amendment to this solicitation by the 
date and time specified in the amendment(s).
    (c) Submission, modification, revision, and withdrawal of proposals.
    (1) Unless other methods (e.g., electronic commerce or facsimile) 
are permitted in the solicitation, proposals and modifications to 
proposals shall be submitted in paper media in sealed envelopes or 
packages. Offers must be:
    (i) Submitted on the forms prescribed and furnished by the 
Government as a part of this solicitation or on copies of those forms, 
and

[[Page 284]]

    (ii) Signed. The person signing an offer must initial each erasure 
or change appearing on any offer form. If the offeror is a partnership, 
the names of the partners composing the firm must be included with the 
offer.
    (2) Late proposals and revisions.
    (i) The Government will not consider any proposal received at the 
office designated in the solicitation after the exact time specified for 
receipt of offers unless it is received before the Government makes 
award and it meets at least one of the following conditions:
    (A) It was sent by registered or certified mail not later than the 
5th calendar day before the date specified for receipt of offers (e.g., 
an offer submitted in response to solicitation requiring receipt of 
offers by the 20th of the month must have been mailed by the 15th).
    (B) It was sent by mail (or telegram or facsimile, if authorized) or 
hand-carried (including delivery by a commercial carrier) if it is 
determined by the Government that the late receipt was due primarily to 
Government mishandling after receipt at the Government installation.
    (C) It was sent by U.S. Postal Service Express Mail Next Day 
Service-Post Office to Addressee, not later than 5:00 p.m. at the place 
of mailing two working days prior to the date specified for receipt of 
proposals. The term ``working days'' excludes weekends and U.S. Federal 
holidays.
    (D) It was transmitted through an electronic commerce method 
authorized by the solicitation and was received at the initial point of 
entry of the Government infrastructure not later than 5:00 p.m. one 
working day prior to the date specified for receipt of proposals.
    (E) There is acceptable evidence to establish that it was received 
at the activity designated for receipt of offers and was under the 
Government's control prior to the time set for receipt of offers, and 
the Contracting Officer determines that accepting the late offer would 
not unduly delay the procurement.
    (F) It is the only proposal received.
    (ii) Any modification or revision of a proposal or response to 
request for information, including any final proposal revision, is 
subject to the same conditions as in subparagraphs (c)(2)(i)(A) through 
(c)(2)(i)(E) of this provision.
    (iii) The only acceptable evidence to establish the date of mailing 
of a late proposal or modification or revision sent either by registered 
or certified mail is the U.S. or Canadian Postal Service postmark both 
on the envelope or wrapper and on the original receipt from the U.S. or 
Canadian Postal Service. Both postmarks must show a legible date or the 
proposal, response to a request for information, or modification or 
revision shall be processed as if mailed late. ``Postmark'' means a 
printed, stamped, or otherwise placed impression (exclusive of a postage 
meter machine impression) that is readily identifiable without further 
action as having been supplied and affixed by employees of the U.S. or 
Canadian Postal Service on the date of mailing. Therefore, offerors or 
respondents should request the postal clerk to place a legible hand 
cancellation bull's eye postmark on both the receipt and the envelope or 
wrapper.
    (iv) Acceptable evidence to establish the time of receipt at the 
Government installation includes the time/date stamp of that 
installation on the proposal wrapper, other documentary evidence of 
receipt maintained by the installation, or oral testimony or statements 
of Government personnel.
    (v) The only acceptable evidence to establish the date of mailing of 
a late offer, modification or revision, or withdrawal sent by Express 
Mail Next Day Service-Post Office to Addressee is the date entered by 
the post office receiving clerk on the ``Express Mail Next Day Service-
Post Office to Addressee'' label and the postmark on both the envelope 
or wrapper and on the original receipt from the U.S. Postal Service, 
``Postmark'' has the same meaning as defined in paragraph (c)(2)(iii) of 
this provision, excluding postmarks of the Canadian Postal Service. 
Therefore, offerors or respondents should request the postal clerk to 
place a legible hand cancellation bull's eye postmark on both the 
receipt and the envelope or wrapper.
    (vi) Notwithstanding paragraph (c)(2)(i) of this provision, a late 
modification or revision of an otherwise successful proposal that makes 
its terms more favorable to the Government will be considered at any 
time it is received and may be accepted.
    (vii) An offeror may withdraw its proposal by written notice or 
telegram (including mailgram) received at any time before award. If the 
solicitation authorizes facsimile proposals, an offeror may withdraw its 
proposal via facsimile received at any time before award, subject to the 
conditions specified in the provision entitled ``Facsimile Proposals.'' 
Proposals may be withdrawn in person by an offeror or an authorized 
representative, if the representative's identity is made known and the 
representative signs a receipt for the proposal before award.
    (viii) If an emergency or unanticipated event interrupts normal 
Government processes so that proposals cannot be received at the office 
designated for receipt of proposals by the exact time specified in the 
solicitation, and urgent Government requirements preclude amendment of 
the solicitation or other notice of an extension of the closing date, 
the time specified for receipt of proposals will be deemed to be 
extended to the same time of day specified in the solicitation

[[Page 285]]

on the first work day on which normal Government processes resume. If no 
time is specified in the solicitation, the time for receipt is 4:30 
p.m., local time, for the designated Government office.
    (3) Any information given to a prospective offeror concerning this 
solicitation will be furnished promptly to all other prospective 
offerors, if that information is necessary in submitting offers or if 
the lack of it would be prejudicial to any other prospective offeror.
    (4) Offerors may submit modifications to their proposals at any time 
before the solicitation closing date and time, and may submit 
modifications in response to an amendment, or to correct a mistake at 
any time before award.
    (5) Offerors may submit revised proposals only if requested or 
allowed by the Contracting Officer.
    (6) The Government will construe an offer to be in full and complete 
with this solicitation unless the offer describes any deviation in the 
offer.
    (7) Offerors may submit proposals that depart from stated 
requirements. Such a proposal shall clearly identify why the acceptance 
of the proposal would be advantageous to the Government. The proposal 
must clearly identify and explicitly define any deviations from the 
terms and conditions of the solicitation, as well as the comparative 
advantage to the Government. The Government reserves the right to amend 
the solicitation to allow all offerors an opportunity to submit revised 
proposals based on the revised requirements.
    (d) Restriction on disclosure and use of data. An offeror that 
includes in its proposal data that it does not want disclosed to the 
public for any purpose, or use by the Government except for evaluation 
purposes, must meet both of the following conditions:
    (1) Mark the title page with the following legend:
    This proposal includes data that shall not be disclosed outside the 
Government and shall not be duplicated, used, or disclosed--in whole or 
in part--for any purpose other than to evaluate this proposal. If, 
however, a lease is awarded to this offeror as a result of--or in 
connection with--the submission of this data, the Government shall have 
the right to duplicate, use, or disclose the data to the extent provided 
in the resulting contract. This restriction does not limit the 
Government's right to use information contained in this data if it is 
obtained from another source without restriction. The data subject to 
this restriction are contained in sheets [insert numbers or other 
identification of sheets].
    (2) Mark each sheet of data it wishes to restrict with the following 
legend:
    Use or disclosure of data contained on this sheet is subject to the 
restriction on the title page of this proposal.
    (e) Lease award.
    (1) The Government intends to award a lease resulting from this 
solicitation to the responsible offeror whose proposal represents the 
best value after evaluation in accordance with the factors and 
subfactors in the solicitation.
    (2) The Government may reject any or all proposals if such action is 
in the Government's interest.
    (3) The Government may waive informalities and minor irregularities 
in proposals received.
    (4) The Government intends to evaluate proposals and award a lease 
after conducting discussions with offerors whose proposals have been 
determined to be within the competitive range. If the Contracting 
Officer determines that the number of proposals that would otherwise be 
in the competitive range exceeds the number at which an efficient 
competition can be conducted, the Contracting Officer may limit the 
number of proposals in the competitive range to the greatest number that 
will permit an efficient competition among the most highly rated 
proposals. Therefore, the offeror's initial proposal should contain the 
offeror's best terms from a price and technical standpoint.
    (5) Exchanges with offerors after receipt of a proposal do not 
constitute a rejection or counteroffer by the Government.
    (6) The Government may determine that a proposal is unacceptable if 
the price proposed are materially unbalanced between line terms or 
subline items. Unbalanced pricing exists when, despite an acceptable 
total evaluated price, the price of one or more contract line items is 
significantly overstated or understand as indicated by the application 
of cost or price analysis techniques. A proposal may be rejected if the 
Contracting Officer determines that the lack of balance poses an 
unacceptable risk to the Government.
    (7) The unconditional written acceptance of an offer establishes a 
valid contract.
    (8) The Government may disclose the following information in 
postaward debriefings to other offerors:
    (i) The overall evaluated cost or price and technical rating of the 
successful offeror;
    (ii) The overall making of all offerors, when any making was 
developed by the agency during source selection; and
    (iii) A summary of the rationale for award.

                           (End of provision)

    Alternate I (MAR 1998). As prescribed in 570.602, substitute the 
following paragraph for paragraph (c)(2)(i) of the basic provision:

    (i) Any offer received at the office designated in the solicitation 
after the exact

[[Page 286]]

time specified for receipt of final proposal revisions will not be 
considered unless it is received before award is made and it meets one 
of the following conditions--

    Alternate II (MAR 1998). As prescribed in 570.602, substitute the 
following paragraph for paragraph (e)(4) of the basic provision:

    (4) The Government intends to evaluate proposals and award a lease 
without discussions with offerors (except clarifications as described in 
FAR 15.306(a)). Therefore, the offeror's initial proposal should contain 
the offeror's best terms from a cost or price and technical standpoint. 
The Government reserves the right to conduct discussions if the 
Contracting Officer later determines them to be necessary. If the 
Contracting Officer determines that the number of proposals that would 
otherwise be in the competitive range exceeds the number at which an 
efficient competition can be conducted, the Contracting Officer may 
limit the number of proposals in the competitive range to the greatest 
number that will permit an efficient competition among the most highly 
rated proposals.



Sec. 552.270-2  Historic Preference.

    As prescribed in 570.602, insert the following provision:

                     Historic Preference (SEP 2004)

    (a) The Government will give preference to offers of space in 
historic properties following this hierarchy of consideration:
    (1) Historic properties within historic districts.
    (2) Non-historic developed and non-historic undeveloped sites within 
historic districts.
    (3) Historic properties outside of historic districts.
    (b) Definitions. (1) Determination of eligibility means a decision 
by the Department of the Interior that a district, site, building, 
structure or object meets the National Register criteria for evaluation 
although the property is not formally listed in the National Register 
(36 CFR 60.3(c)).
    (2) Historic district means a geographically definable area, urban 
or rural, possessing a significant concentration, linkage, or continuity 
of sites, buildings, structures, or objects united by past events or 
aesthetically by plan or physical development. A district may also 
comprise individual elements separated geographically but linked by 
association or history (36 CFR 60.3(d)). The historic district must be 
included in or be determined eligible for inclusion in the National 
Register of Historic Places.
    (3) Historic property means any pre-historic or historic district, 
site, building, structure, or object included in or been determined 
eligible for inclusion in the National Register of Historic Places 
maintained by the Secretary of the Interior (36 CFR 800.16(l)).
    (4) National Register of Historic Places means the National Register 
of districts, sites, buildings, structures and objects significant in 
American history, architecture, archeology, engineering and culture that 
the Secretary of the Interior is authorized to expand and maintain under 
the National Historic Preservation Act (36 CFR 60.1).
    (c) The offer of space must meet the terms and conditions of this 
solicitation. The Contracting Officer has discretion to accept 
alternatives to certain architectural characteristics and safety 
features defined elsewhere in this solicitation to maintain the 
historical integrity of an historic building, such as high ceilings and 
wooden floors, or to maintain the integrity of an historic district, 
such as setbacks, floor-to-ceiling heights, and location and appearance 
of parking.
    (d) When award will be based on the lowest price technically 
acceptable source selection process, the Government will give a price 
evaluation preference, based on the total annual square foot (ANSI/BOMA 
Office Area) cost to the Government, to historic properties as follows:
    (1) First to suitable historic properties within historic districts, 
a 10 percent price preference.
    (2) If no suitable historic property within an historic district is 
offered, or the 10 percent preference does not result in such property 
being the lowest price technically acceptable offer, the Government will 
give a 2.5 percent price preference to suitable non-historic developed 
or undeveloped sites within historic districts.
    (3) If no suitable non-historic developed or undeveloped site within 
an historic district is offered, or the 2.5 percent preference does not 
result in such property being the lowest price technically acceptable 
offer, the Government will give a 10 percent price preference to 
suitable historic properties outside of historic districts.
    (4) Finally, if no suitable historic property outside of historic 
districts is offered, no historic price preference will be given to any 
property offered.
    (e) When award will be based on the best value tradeoff source 
selection process, which permits tradeoffs among price and non-price 
factors, the Government will give a price evaluation preference, based 
on the total annual square foot (ANSI/BOMA Office Area) cost to the 
Government, to historic properties as follows:
    (1) First to suitable historic properties within historic districts, 
a 10 percent price preference.
    (2) If no suitable historic property within a historic district is 
offered or remains in the competition, the Government will give a 2.5

[[Page 287]]

percent price preference to suitable non-historic developed or 
undeveloped sites within historic districts.
    (3) If no suitable non-historic developed or undeveloped site within 
an historic district is offered or remains in the competition, the 
Government will give a 10 percent price preference to suitable historic 
properties outside of historic districts.
    (4) Finally, if no suitable historic property outside of historic 
districts is offered, no historic price preference will be given to any 
property offered.
    (f) The Government will compute price evaluation preferences by 
reducing the price(s) of the offerors qualifying for a price evaluation 
preference by the applicable percentage provided in this provision. The 
price evaluation preference will be used for price evaluation purposes 
only. The Government will award a contract in the amount of the actual 
price(s) proposed by the successful offeror and accepted by the 
Government.
    (g) To qualify for a price evaluation preference, offerors must 
provide satisfactory documentation in their offer that their property 
qualifies as one of the following:
    (1) An historic property within an historic district.
    (2) A non-historic developed or undeveloped site within an historic 
district.
    (3) An historic property outside of an historic district.

                           (End of provision)

[69 FR 55938, Sept. 16, 2004]



Sec. 552.270-3  Parties To Execute Lease.

    As prescribed in 570.602, insert the following provision:

                   Parties To Execute Lease (SEP 1999)

    (a) If the lease is executed by an attorney, agent, or trustee on 
behalf of the Lessor, an authenticated copy of his power of attorney, or 
other evidence to act on behalf of the Lessor, shall accompany the 
lease.
    (b) If the Lessor is a partnership, the lease shall be signed with 
the partnership name, followed by the name of the legally authorized 
partner signing the same, and, if requested by the Government, a copy of 
either the partnership agreement or current Certificate of Limited 
Partnership shall accompany the lease.
    (c) If the Lessor is a corporation, the lease shall be signed with 
the corporate name, followed by the signature and title of the officer 
or other person signing the lease on its behalf, duly attested, and, if 
requested by the Government, evidence of this authority to so act shall 
be furnished.

                           (End of provision)



Sec. 552.270-4  Definitions.

    As prescribed in 570.603, insert the following clause:

                         Definitions (SEP 1999)

    The following terms and phrases (except as otherwise expressly 
provided or unless the context otherwise requires) for all purposes of 
this lease shall have the respective meanings hereinafter specified:
    (a) ``Commencement Date'' means the first day of the term.
    (b) ``Contract'' and ``Contractor'' means ``Lease'' and ``Lessor,'' 
respectively.
    (c) ``Contracting Officer'' means a person with the authority to 
enter into, administer, and/or terminate contracts and make related 
determinations and findings. The term includes certain authorized 
representatives of the Contracting Officer acting within the limits of 
their authority as delegated by the Contracting Officer.
    (d) ``Delivery Date'' means the date specified in or determined 
pursuant to the provisions of this lease for delivery of the premises to 
the Government, improved in accordance with the provisions of this lease 
and substantially complete, as such date may be modified in accordance 
with the provisions of this lease.
    (e) ``Delivery Time'' means the number of days provided by this 
lease for delivery of the premises to the Government, as such number may 
be modified in accordance with the provision so this lease.''
    (f) ``Excusable Delays'' means delays arising without the fault or 
negligence of Lessor and Lessor's subcontractors and suppliers at any 
tier, and shall include, without limitation:
    (1) acts of God or of the public enemy,
    (2) acts of the United States of America in either its sovereign or 
contractual capacity,
    (3) acts of another contractor in the performance of a contract with 
the Government,
    (4) fires,
    (5) floods,
    (6) epidemics,
    (7) quarantine restrictions,
    (8) strikes,
    (9) freight embargoes,
    (10) unusually severe weather, or
    (11) delays of subcontractors or suppliers at any tier arising from 
unforeseeable causes beyond the control and without the fault or 
negligence of both the Lessor and any such subcontractor or supplier.
    (g) ``Lessor'' means the sub-lessor if this lease is a sublease.
    (h) ``Lessor shall provide'' means the Lessor shall furnish and 
install at Lessor's expense.

[[Page 288]]

    (i) ``Notice'' means written notice sent by certified or registered 
mail, Express Mail or Comparable service, or delivered by hand. Notice 
shall be effective on the date delivery is accepted or refused.
    (j) ``Premises'' means the space described in this lease.
    (k) ``Substantially complete'' and ``substantial completion'' means 
that the work, the common and other areas of the building, and all other 
things necessary for the Government's access to the premises and 
occupancy, possession, use and enjoyment thereof, as provided in this 
lease, have been completed or obtained, excepting only such minor 
matters as do not interfere with or materially diminish such access, 
occupancy, possession, use of enjoyment.
    (l) ``Usable square feet'' means the ANSI/BOMA Z65.1-1996 definition 
for BOMA usable office area, which means ``The area where a tenant 
normally houses personnel and/or furniture, for which a measurement is 
to be computed.''
    (m) ``Work'' means all alterations, improvements, modifications, and 
other things required for the preparation or continued occupancy of the 
premises by the Government as specified in this lease.

                             (End of clause)



Sec. 552.270-5  Subletting and Assignment.

    As prescribed in 570.603, insert the following clause:

                  Subletting and Assignment (SEP 1999)

    The Government may sublet any part of the premises but shall not be 
relieved from any obligations under this lease by reason of any such 
subletting. The Government may at any time assign this lease, and be 
relieved from all obligations to Lessor under this lease excepting only 
unpaid rent and other liabilities, if any that have accrued to the date 
of said assignment. Any assignment shall be subject to prior written 
consent of Lessor, which shall not be unreasonably withheld.

                             (End of clause)



Sec. 552.270-6  Maintenance of Building and Premises--Right of Entry.

    As prescribed in 570.603, insert the following clause:

     Maintenance of Building and Premises--Right of Entry (SEP 1999)

    Except in case of damage arising out of the willful act or 
negligence of a Government employee, Lessor shall maintain the premises, 
including the building and all equipment, fixtures, and appurtenances 
furnished by the lessor under this lease, in good repair and condition 
so that they are suitable in appearance and capable of supplying such 
heat, air conditioning, light, ventilation, access and other things to 
the premises, without reasonably preventable or recurring disruption, as 
is required for the Government's access to, occupancy, possession, use 
and enjoyment of the premises as provided in this lease. For the purpose 
of so maintaining the premises, the Lessor may at reasonable times enter 
the premises with the approval of the authorized Government 
representative in charge.

                             (End of clause)



Sec. 552.270-7  Fire and Casualty Damage.

    As prescribed in 570.603, insert the following clause:

                   Fire and Casualty Damage (SEP 1999)

    If the entire premises are destroyed by fire or other casualty, this 
lease will immediately terminate. In case of partial destruction or 
damage, so as to render the premises untenantable, as determined by the 
Government, the Government may terminate the lease by giving written 
notice to the Lessor within 15 calendar days of the fire or other 
casualty; if so terminated, no rent will accrue to the Lessor after such 
partial destruction or damage; and if not so terminated, the rent will 
be reduced proportionately by supplemental agreement hereto effective 
from the date of such partial destruction or damage. Nothing in this 
lease shall be construed as relieving Lessor from liability for damage 
to or destruction of property of the United States of America caused by 
the willful or negligent act or omission of Lessor.

                             (End of clause)



Sec. 552.270-8  Compliance with Applicable Law.

    As prescribed in 570.603, insert the following clause:

                Compliance With Applicable Law (SEP 1999)

    Lessor shall comply with all Federal, state and local laws 
applicable to the Lessor as owner or lessor, or both, of the building or 
premises, including, without limitation, laws applicable to the 
construction, ownership, alteration or operation of both or either 
thereof, and will obtain all necessary permits, licenses and similar 
items at Lessor's expense. The Government will comply with all Federal, 
state and local laws applicable to and enforceable against it as a 
tenant under this lease; provided that nothing in this lease shall be 
construed as a waiver of any sovereign immunity of the Government. This 
lease shall be governed by Federal law.

[[Page 289]]

                             (End of clause)



Sec. 552.270-9  Inspection--Right of Entry.

    As prescribed in 570.603, insert the following clause:

                  Inspection--Right of Entry (SEP 1999)

    (a) At any time and from time to time after receipt of an offer 
(until the same has been duly withdrawn or rejected), after acceptance 
thereof and during the term, the agents, employees and contractors of 
the Government may, upon reasonable prior notice to Offeror or Lessor, 
enter upon the offered premises or the premises, and all other areas of 
the building access to which is necessary to accomplish the purposes of 
entry, to determine the potential or actual compliance by the Offeror or 
Lessor with the requirements of the solicitation or this lease, which 
purposes shall include, but not be limited to:
    (1) Inspecting, sampling and analyzing suspected asbestos-containing 
materials and air monitoring for asbestos fibers;
    (2) Inspecting the heating, ventilation and air conditioning system, 
maintenance records, and mechanical rooms for the offered premises or 
the premises;
    (3) Inspecting for any leaks, spills, or other potentially hazardous 
conditions which may involve tenant exposure to hazardous or toxic 
substances; and
    (4) Inspecting for any current or past hazardous waste operations, 
to ensure that appropriate mitigative actions were taken to alleviate 
any environmentally unsound activities in accordance with Federal, State 
and local law.
    (b) Nothing in this clause shall be construed to create a Government 
duty to inspect for toxic materials or to impose a higher standard of 
care on the Government than on other lessees. The purpose of this clause 
is to promote the ease with which the Government may inspect the 
building. Nothing in this clause shall act to relieve the Lessor of any 
duty to inspect or liability which might arise as a result of Lessor's 
failure to inspect for or correct a hazardous condition.

                             (End of clause)



Sec. 552.270-10  Failure in Performance.

    As prescribed in 570.603, insert the following clause:

                    Failure in Performance (SEP 1999)

    The covenant to pay rent and the covenant to provide any service, 
utility, maintenance, or repair required under this lease are 
interdependent. In the event of any failure by the Lessor to provide any 
service, utility, maintenance, repair or replacement required under this 
lease the Government may, by contract or otherwise, perform the 
requirement and deduct from any payment or payments under this lease, 
then or thereafter due, the resulting cost to the Government, including 
all administrative costs. If the Government elects to perform any such 
requirement, the Government and each of its contractors shall be 
entitled to access to any and all areas of the building, access to which 
is necessary to perform any such requirement, and the Lessor shall 
afford and facilitate such access. Alternatively, the Government may 
deduct from any payment under this lease, then or thereafter due, an 
amount which reflects the reduced value of the contract requirement not 
performed. No deduction from rent pursuant to this clause shall 
constitute a default by the Government under this lease. These remedies 
are not exclusive and are in addition to any other remedies which may be 
available under this lease or at law.

                             (End of clause)



Sec. 552.270-11  Successors Bound.

    As prescribed in 570.603, insert the following clause:

                       Successors Bound (SEP 1999)

    This lease shall bind, and inure to the benefit of, the parties and 
their respective heirs, executors, administrators, successors and 
assigns.

                             (End of clause)



Sec. 552.270-12  Alterations.

    As prescribed in 570.603, insert the following clause:

                         Alterations (SEP 1999)

    The Government shall have the right during the existence of this 
lease to make alterations, attach fixtures, and erect structures or 
signs in or upon the premises hereby leased, which fixtures, additions 
or structures so placed in, on, upon, or attached to the said premises 
shall be and remain the property of the Government and may be removed or 
otherwise disposed of by the Government. If the lease contemplates that 
the Government is the sole occupant of the building, for purposes of 
this clause, the leased premises include the land on which the building 
is sited and the building itself. Otherwise, the Government shall have 
the right to tie into or make any physical connection with any structure 
located on the property as is reasonably necessary for appropriate 
utilization of the leased space.

[[Page 290]]

                             (End of clause)



Sec. 552.270-13  Proposals for Adjustment.

    As prescribed in 570.603, insert the following clause:

                   Proposals for Adjustment (SEP 1999)

    (a) The Contracting Officer may, from time to time during the term 
of this lease, require changes to be made in the work or services to be 
performed and in the terms or conditions of this lease. Such changes 
will be required under the Changes clause.
    (b) If the Contracting Officer makes a change within the general 
scope of the lease, the Lessor shall submit, in a timely manner, an 
itemized cost proposal for the work to be accomplished or services to be 
performed when the cost exceeds $100,000. The proposal, including all 
subcontractor work, will contain at least the following details--
    (1) Material quantities and unit costs;
    (2) Labor costs (identified with specific item or material to be 
placed or operation to be performed);
    (3) Equipment costs;
    (4) Worker's compensation and public liability insurance;
    (5) Overhead;
    (6) Profit; and
    (7) Employment taxes under FICA and FUTA.
    (c) The following Federal Acquisition Regulation (FAR) provisions 
also apply to all proposals exceeding $500,000 in cost--
    (1) The Lessor shall provide cost or pricing data including 
subcontractor cost or pricing data (48 CFR 15.403-4); and
    (2) The Lessor's representative, all Contractors, and subcontractors 
whose portion of the work exceeds $500,000 must sign and return the 
``Certificate of Current Cost or Pricing Data'' (48 CFR 15.406-2).
    (d) Lessors shall also refer to 48 CFR Part 31, Contract Cost 
Principles, for information on which costs are allowable, reasonable, 
and allocable in Government work.

                             (End of clause)



Sec. 552.270-14  Changes.

    As prescribed in 570.603, insert the following clause:

                           Changes (SEP 1999)

    (a) The Contracting Officer may at any time, by written order, make 
changes within the general scope of this lease in any one or more of the 
following:
    (1) Specifications (including drawings and designs).
    (2) Work or services.
    (3) Facilities or space layout.
    (4) Amount of space, provided the Lessor consents to the change.
    (b) If any such change causes an increase or decrease in Lessor's 
cost of or the time required for performance under this lease, whether 
or not changed by the order, the Contracting Officer shall modify this 
lease to provide for one or more of the following:
    (1) A modification of the delivery date.
    (2) An equitable adjustment in the rental rate.
    (3) A lump sum equitable adjustment.
    (4) An equitable adjustment of the annual operating costs per usable 
square foot specified in this lease.
    (c) The Lessor must assert its right to an adjustment under this 
clause within 30 days from the date of receipt of the change order and 
must submit a proposal for adjustment. Failure to agree to any 
adjustment shall be a dispute under the Disputes clause. However, 
nothing in this clause excuses the lessor from proceeding with the 
change as directed.
    (d) Absent such written change order, the Government is not liable 
to Lessor under this clause.

                             (End of clause)



Sec. 552.270-15  Liquidated Damages.

    As prescribed in 570.603, insert the following clause:

                      Liquidated Damages (SEP 1999)

    In case of failure on the part of the Lessor to complete the work 
within the time fixed in the lease contract or letter of award, the 
Lessor shall pay the Government as fixed and agreed liquidated damages, 
pursuant to this clause, the sum $------ for each and every calendar day 
that the delivery is delayed beyond the date specified for delivery of 
all the space ready for occupancy by the Government. this remedy is not 
exclusive and is in addition to any other remedies which may be 
available under this lease or at law.

                             (End of clause)



Sec. 552.270-16  Adjustment for Vacant Premises.

    As prescribed in 570.603, insert the following clause:

                Adjustment for Vacant Premises (SEP 1999)

    (a) If the Government fails to occupy any portion of the leased 
premises or vacates the premises in whole or in part before the lease 
term expires, the rental rate will be reduced.
    (b) The rental rate will be reduced by that portion of the costs per 
usable square foot of operating expenses not required to maintain

[[Page 291]]

the space. The reduction takes effect 30 calendar days after the 
Government gives notice to the Lessor, and continues in effect until the 
Government occupies the premises or the lease expires or is terminated.

                             (End of clause)



Sec. 552.270-17  Delivery and Condition.

    As prescribed in 570.603, insert the following clause:

                    Delivery and Condition (SEP 1999)

    (a) Unless the Government elects to have the space occupied in 
increments, the space must be delivered ready for occupancy as a 
complete unit. The Government reserves the right to determine when the 
space is substantially complete.
    (b) If the premises do not in every respect comply with the 
provisions of this lease the Contracting Officer may, in accordance with 
the Failure in Performance clause of this lease, elect to reduce the 
rent payments.

                             (End of clause)



Sec. 552.270-18  Default in Delivery--Time Extensions.

    As prescribed in 570.603, insert the following clause:

             Default In Delivery--Time Extensions (SEP 1999)

    (a) With respect to Lessor's obligation to deliver the premises 
substantially complete by the delivery date, time is of the essence. If 
the Lessor fails to work diligently to ensure its substantial completion 
by the delivery date or fails to substantially complete the work by such 
date, the Government may by notice to the Lessor terminate this lease. 
Such termination is effective when received by Lessor. The Lessor and 
the Lessor's sureties, if any, are jointly and severally liable for any 
damages to the Government resulting from such termination, as provided 
in this clause. The Government is entitled to the following damages:
    (1) The Government's aggregate rent, estimated real estate tax, and 
operating cost adjustments for the firm term and all option terms of its 
replacement lease or leases, in excess of the aggregate rent and 
estimated real estate tax and operating cost adjustments for the term. 
If the Government procures replacement premises for a term (including 
all option terms) in excess of this lease term, the Lessor is not liable 
for excess Government rent or adjustments during such excess lease term.
    (2) All administrative and other costs the Government incurs in 
procuring a replacement lease or leases.
    (3) Other, additional relief provided for in this lease, at law, or 
in equity.
    (b) Damages to which the Government is entitled under this clause 
are due and payable thirty (30) days following the date Lessor receives 
notice from the Contracting Officer specifying such damages.
    (c) Delivery by Lessor of less than the minimum usable square 
footage required by this lease shall in no event be construed as 
substantial completion, except as the Contracting Officer permits.
    (d) The Government shall not terminate this lease under this clause 
nor charge the Lessor with damages under this clause, if (1) the delay 
in substantially completing the work arises from excusable delays, and 
(2) the Lessor within 10 days from the beginning of any such delay 
(unless extended in writing by the Contracting Officer) provides notice 
to the Contracting Officer of the causes of delay. The Contracting 
Officer shall ascertain the facts and the extent of delay. If the facts 
warrant, the Contracting Officer shall extend the delivery date, to the 
extent of such delay at no additional costs to the Government. A time 
extension is the sole remedy of the Lessor.

                             (End of clause)



Sec. 552.270-19  Progressive Occupancy.

    As prescribed in 570.603, insert the following clause:

                    Progressive Occupancy (SEP 1999)

    The Government shall have the right to elect to occupy the space in 
partial increments prior to the substantial completion of the entire 
leased premises, and the Lessor agrees to schedule its work so as to 
deliver the space incrementally as elected by the Government. The 
Government shall pay rent commencing with the first business day 
following substantial completion of the entire leased premise unless the 
Government has elected to occupy the leased premises incrementally. In 
case of incremental occupancy, the Government shall pay rent pro rata 
upon the first business day following substantial completion of each 
incremental unit. Rental payments shall become due on the first workday 
of the month following the month in which an increment of space is 
substantially complete, except that should an increment of space be 
substantially completed after the fifteenth day of the month, the 
payment due date will be the first workday of the second month following 
the month in which it was substantially complete. The commencement date 
of the firm lease term will be a complete determined from all rent 
commencement dates.

[[Page 292]]

                             (End of clause)



Sec. 552.270-20  Payment.

    As prescribed in 570.603, insert the following clause:

                           Payment (SEP 1999)

    (a) When space is offered and accepted, usable square footage 
delivered will be confirmed by either:
    (1) The Government's measurement of plans submitted by the 
successful offeror as approved by the Government, and an inspection of 
the space to verify that the delivered space conforms with such plans.
    (2) A mutual on-site measurement of the space if the Contracting 
Officer determines it necessary.
    (b) The Government will not pay for space in excess of the amount of 
usable square footage stated in the lease.
    (c) If the amount of usable square footage delivered is less than 
the amount agreed to in the lease, the lease will be modified to reflect 
the amount of usable space delivered and the annual rental will be 
adjusted as follows:
    Usable square feet (USF) not delivered multiplied by one plus the 
common area factor (CAF), multiplied by the rate per rentable square 
foot (RSF). That is:

USF x (1+CAF) x Rate per RSF = Reduction in Annual Rent.

                             (End of clause)



Sec. 552.270-21  Effect of Acceptance and Occupancy.

    As prescribed in 570.603, insert the following clause:

              Effect of Acceptance and Occupancy (SEP 1999)

    Neither the Government's acceptance of the premises for occupancy, 
nor the Government's occupancy thereof, shall be construed as a waiver 
of any requirement of or right of the Government under this Lease, or as 
otherwise prejudicing the Government with respect to any such 
requirement or right.

                             (End of clause)



Sec. 552.270-22  Default by Lessor During the Term.

    As prescribed in 570.603, insert the following clause:

              Default By Lessor During the Term (SEP 1999)

    (a) Each of the following shall constitute a default by Lessor under 
this lease:
    (1) Failure to maintain, repair, operate or service the premises as 
and when specified in this lease, or failure to perform any other 
requirement of this lease as and when required provided any such failure 
shall remain uncured for a period of thirty (30) days next following 
Lessor's receipt of notice thereof from the Contracting Officer or an 
authorized representative.
    (2) Repeated and unexcused failure by Lessor to comply with one or 
more requirements of this lease shall constitute a default 
notwithstanding that one or all such failures shall have been timely 
cured pursuant to this clause.
    (b) If a default occurs, the Government may, by notice to Lessor, 
terminate this lease for default and if so terminated, the Government 
shall be entitled to the damages specified in the Default in Delivery-
Time Extensions clause.

                             (End of clause)



Sec. 552.270-23  Subordination, Nondisturbance and Attornment.

    As prescribed in 570.603, insert the following clause:

         Subordination, Nondisturbance and Attornment (SEP 1999)

    (a) Lessor warrants that it holds such title to or other interest in 
the premises and other property as is necessary to the Government's 
access to the premises and full use and enjoyment thereof in accordance 
with the provisions of this lease. Government agrees, in consideration 
of the warranties and conditions set forth in this clause, that this 
lease is subject and subordinate to any and all recorded mortgages, 
deeds of trust and other liens now or hereafter existing or imposed upon 
the premises, and to any renewal, modification or extension thereof. It 
is the intention of the parties that this provision shall be self-
operative and that no further instrument shall be required to effect the 
present or subsequent subordination of this lease. Government agrees, 
however, within twenty (20) business days next following the Contracting 
Officer's receipt of a written demand, to execute such instruments as 
Lessor may reasonably request to evidence further the subordination of 
this lease to any existing or future mortgage, deed of trust or other 
security interest pertaining to the premises, and to any water, sewer or 
access easement necessary or desirable to serve the premises or 
adjoining property owned in whole or in part by Lessor if such easement 
does not interfere with the full enjoyment of any right granted the 
Government under this lease.
    (b) No such subordination, to either existing or future mortgages, 
deeds of trust or

[[Page 293]]

other lien or security instrument shall operate to affect adversely any 
right of the Government under this lease so long as the Government is 
not in default under this lease. Lessor will include in any future 
mortgage, deed of trust or other security instrument to which this lease 
becomes subordinate, or in a separate nondisturbance agreement, a 
provision to the foregoing effect. Lessor warrants that the holders of 
all notes or other obligations secured by existing mortgages, deeds of 
trust or other security instruments have consented to the provisions of 
this clause, and agrees to provide true copies of all such consents to 
the Contracting Officer promptly upon demand.
    (c) In the event of any sale of the premises or any portion thereof 
by foreclosure of the lien of any such mortgage, deed of trust or other 
security instrument, or the giving of a deed in lieu of foreclosure, the 
Government will be deemed to have attorned to any purchaser, purchasers, 
transferee or transferees of the premises or any portion thereof and its 
or their successors and assigns, and any such purchasers and transferees 
will be deemed to have assumed all obligations of the Lessor under this 
lease, so as to establish direct privity of estate and contract between 
Government and such purchasers or transferees, with the same force, 
effect and relative priority in time and right as if the lease had 
initially been entered into between such purchasers or transferees and 
the Government; provided, further, that the Contracting Officer and such 
purchasers or transferees shall, with reasonable promptness following 
any such sale or deed delivery in lieu of foreclosure, execute all such 
revisions to this lease, or other writings, as shall be necessary to 
document the foregoing relationship.
    (d) None of the foregoing provisions may be deemed or construed to 
imply a waiver of the Government's rights as a sovereign.

                             (End of clause)



Sec. 552.270-24  Statement of Lease.

    As prescribed in 570.603, insert the following clause:

                      Statement of Lease (SEP 1999)

    (a) The Contracting Officer will, within thirty (30) days next 
following the Contracting Officer's receipt of a joint written request 
from Lessor and a prospective lender or purchaser of the building, 
execute and deliver to Lessor a letter stating that the same is issued 
subject to the conditions stated in this clause and, if such is the 
case, that (1) the lease is in full force and effect; and (2) the date 
to which the rent and other charges have been paid in advance, if any; 
and (3) whether any notice of default has been issued.
    (b) Letters issued pursuant to this clause are subject to the 
following conditions:
    (1) That they are based solely upon a reasonably diligent review of 
the Contracting Officer's lease file as of the date of issuance;
    (2) That the Government shall not be held liable because of any 
defect in or condition of the premises or building;
    (3) That the Contracting Officer does not warrant or represent that 
the premises or building comply with applicable Federal, State and local 
law; and
    (4) That the Lessor, and each prospective lender and purchaser are 
deemed to have constructive notice of such facts as would be 
ascertainable by reasonable prepurchase and precommitment inspection of 
the Premises and Building and by inquiry to appropriate Federal, State 
and local Government officials.

                             (End of clause)



Sec. 552.270-25  Substitution of Tenant Agency.

    As prescribed in 570.603, insert the following clause:

                Substitution of Tenant Agency (SEP 1999)

    The Government may, at any time and from time to time, substitute 
any Government agency or agencies for the Government agency or agencies, 
if any, named in the lease.

                             (End of clause)



Sec. 552.270-26  No Waiver.

    As prescribed in 570.603, insert the following clause:

                          No Waiver (SEP 1999)

    No failure by either party to insist upon the strict performance of 
any provision of this lease or to exercise any right or remedy 
consequent upon a breach thereof, and no acceptance of full or partial 
rent or other performance by either party during the continuance of any 
such breach shall constitute a waiver of any such breach of such 
provision.

                             (End of clause)



Sec. 552.270-27  Integrated Agreement.

    As prescribed in 570.603, insert the following clause:

                     Integrated Agreement (SEP 1999)

    This Lease, upon execution, contains the entire agreement of the 
parties and no prior written or oral agreement, express or implied, 
shall be admissible to contradict the provisions of the Lease.

[[Page 294]]

                             (End of clause)



Sec. 552.270-28  Mutuality of Obligation.

    As prescribed in 570.603, insert the following clause:

                   Mutuality of Obligation (SEP 1999)

    The obligations and covenants of the Lessor, and the Government's 
obligation to pay rent and other Government obligations and covenants, 
arising under or related to this Lease, are interdependent. The 
Government may, upon issuance of and delivery to Lessor of a final 
decision asserting a claim against Lessor, set off such claim, in whole 
or in part, as against any payment or payments then or thereafter due 
the Lessor under this lease. No setoff pursuant to this clause shall 
constitute a breach by the Government of this lease.

                             (End of clause)



Sec. 552.270-29  Acceptance of Space.

    As prescribed in 570.603, insert the following clause:

                     Acceptance of Space (SEP 1999)

    (a) When the Lessor has completed all alterations, improvements, and 
repairs necessary to meet the requirements of the lease, the Lessor 
shall notify the Contracting Officer. The Contracting Officer or 
designated representative shall promptly inspect the space.
    (b) The Government will accept the space and the lease term will 
begin after determining that the space is substantially complete and 
contains the required usable square footage as indicated in Paragraph 
1.1, Amount and Type of Space, of this solicitation.

                             (End of clause)

                             PART 553_FORMS

                  Subpart 553.2_Illustrations of Forms

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37265, July 9, 1999, unless otherwise noted.



Sec. 553.300  Scope of subpart.

    Standard and GSA forms prescribed or referenced in the text of this 
chapter are illustrated in and made a part of the General Services 
Administration Acquisition Manual. The forms are not illustrated in 
Title 48, Chapter 5, of the Code of Federal Regulations. Copies may be 
obtained from the Director of the Office of GSA Acquisition Policy 
(MVP), 1800 F Street, NW, Washington, DC 20405.

[[Page 295]]

                SUBCHAPTER I_SPECIAL CONTRACTING PROGRAMS

         PART 570_ACQUIRING LEASEHOLD INTERESTS IN REAL PROPERTY

                          Subpart 570.1_General

Sec.

Sec. 570.101 Applicability.

Sec. 570.102 Definitions.

Sec. 570.103 Authority to lease.

Sec. 570.104 Competition.

Sec. 570.105 Methods of contracting.

Sec. 570.105-1 Contracting by negotiation.

Sec. 570.105-2 Two-phase design-build selection procedures.

Sec. 570.105-3 Sealed bidding.

Sec. 570.106 Publicizing/Advertising.

Sec. 570.107 Oral presentations.

Sec. 570.108 Responsibility determination.

Sec. 570.109 Certifications.

Sec. 570.110 Cost or pricing data and information other than cost or 
          pricing data.

Sec. 570.111 Inspection and acceptance.

Sec. 570.112 Awards to Federal employees.

Sec. 570.113 Disclosure of mistakes after award.

Sec. 570.114 Protests.

          Subpart 570.2_Simplified Lease Acquisition Procedures


Sec. 570.201 Purpose.

Sec. 570.202 Policy.

Sec. 570.203 Procedures.

Sec. 570.203-1 Market survey.

Sec. 570.203-2 Competition.

Sec. 570.203-3 Soliciting offers.

Sec. 570.203-4 Negotiations, evaluation, and award.

  Subpart 570.3_Contracting Procedures for Leasehold Interests in Real 
                                Property


Sec. 570.301 Market survey.

Sec. 570.302 Description of requirements.

Sec. 570.303 Solicitation for offers.

Sec. 570.303-1 Preparing the SFO.

Sec. 570.303-2 Issuing the SFO.

Sec. 570.303-3 Late offers, modifications of offers, and withdrawals of 
          offers.

Sec. 570.303-4 Changes to SFOs.

Sec. 570.304 General source selection procedures.

Sec. 570.305 Two-phase design-build selection procedures.

Sec. 570.306 Evaluating offers.

Sec. 570.307 Negotiations.

Sec. 570.308 Award.

Sec. 570.309 Debriefings.

    Subpart 570.4_Special Aspects of Contracting for Continued Space 
                              Requirements


Sec. 570.401 Renewal options.

Sec. 570.402 Succeeding leases.

Sec. 570.402-1 General.

Sec. 570.402-2 Publicizing/Advertising.

Sec. 570.402-3 Market survey.

Sec. 570.402-4 No potential acceptable locations.

Sec. 570.402-5 Potential acceptable locations.

Sec. 570.402-6 Cost-benefit analysis.

Sec. 570.403 Expansion requests.

Sec. 570.404 Superseding leases.

Sec. 570.405 Lease extensions.

   Subpart 570.5_Special Aspects of Contracting for Lease Alterations


Sec. 570.501 General.

Sec. 570.502 Alterations by the lessor.

Sec. 570.502-1 Justification and approval requirements.

Sec. 570.502-2 Procedures.

Sec. 570.503 Alterations by the Government or through a separate 
          contract.

       Subpart 570.6_Solicitation Provisions and Contract Clauses


Sec. 570.601 FAR provisions and clauses.

Sec. 570.602 GSAR solicitation provisions.

Sec. 570.603 GSAR contract clauses.

Sec. 570.604 Deviations to provisions and clauses.

                           Subpart 570.7_Forms


Sec. 570.701 Standard forms.

Sec. 570.702 GSA forms.

    Authority: 40 U.S.C. 486(c).

    Source: 64 FR 37265, July 9, 1999, unless otherwise noted.

                          Subpart 570.1_General



Sec. 570.101  Applicability.

    (a) This part applies to acquisitions of leasehold interests in real 
property except:
    (1) Leasehold interests acquired by the power of eminent domain or 
by donation.
    (2) Acquisition of leasehold interests in bare or unimproved land.
    (b) In addition, the GSAR rules in the following table apply. Other 
provisions of 48 CFR Chapter 5 (GSAR) do not apply to leases of real 
property unless specifically cross-referenced in this part 570.

  GSAR Rules Applicable to Acquisitions of Leasehold Interests in Real
                                Property
 
 
 
501               514.201-7(b)          517.207          533
502               514.407               519.7            536.271

[[Page 296]]

 
503               515.204-1             519.12           537.2
504.5             515.209-70            522.8            552
505               515.305               532.1            553
509.4             517.202               532.908          ...............
 



Sec. 570.102  Definitions.

    Acquisition means the acquiring by lease of an interest in improved 
real property for use by the Federal Government, whether the space 
already exists or must be constructed.
    Contract means lease.
    Contractor means lessor.
    Landlord or lessor means any individual, firm, partnership, trust, 
association, State or local government, or other legal entity that 
leases real property to the Government.
    Lease or leasehold interest in real property means a conveyance to 
the Government of the right of exclusive possession of real property for 
a definite period of time by a landlord. It may include operational 
services provided by the landlord.
    Lessee or tenant means the United States of America.
    Operational services means services that support use of a leased 
property, such as heating, ventilation, air condition, utilities, and 
custodial services.
    Rent and related services means that consideration paid for the use 
of leased property plus the costs of operational services whether 
furnished by the lessor, the Government, or both.
    Simplified lease acquisition procedures mean the procedures for 
awarding leases at or below the simplified lease acquisition threshold.
    Simplified lease acquisition threshold Means $100,000 average annual 
rent for the term of the lease, including option periods and excluding 
the cost of operational services.
    Small business means a concern including affiliates, which is 
organized for profit, is independently-owned and operated, is not 
dominant in the field of leasing commercial real estate, and has annual 
average gross receipts of $15 million or less for the preceding three 
fiscal years.
    Solicitation for Offers (SFO) means invitation for bids in sealed 
bidding or request for proposals in negotiations.
    Space in buildings means the premises leased, or to be leased, 
including improvements. Its quantity is normally expressed in square 
feet. It does not include space acquired by the power of eminent domain, 
donation, or condemnation, nor acquisitions of bare or unimproved land.
    Substantially as follows or substantially the same as, when used in 
prescribing a provision or clause, means that you may prepare and use a 
variation of that provision or clause to accommodate requirements 
peculiar to an individual acquisition. The variation must include the 
salient features of the FAR or GSAR provision or clause. It must also be 
consistent with the intent, principle, and substance of the FAR or GSAR 
provision or clause and related coverage on the subject matter.



Sec. 570.103  Authority to lease.

    (a) The Federal Property and Administrative Services Act of 1949 (40 
U.S.C. 490(h)(1)), as amended, and Section 1 of the Reorganization Plan 
No. 18 of 1950 (40 U.S.C. 490 Note) authorize the Administrator of 
General Services to acquire leasehold interests in real property for use 
by Federal agencies. The authority is limited to leases for buildings 
and improvement that bind the Government for periods not exceeding 20 
years.
    (b) You have exclusive authority to enter into and administer leases 
on the Government's behalf to the extent provided in your certificate of 
appointment as a contracting officer.



Sec. 570.104  Competition.

    Unless you use the simplified procedures in subpart 570.2, the 
competition requirements of FAR part 6 apply to acquisition of leasehold 
interests in real property.



Sec. 570.105  Methods of contracting.



Sec. 570.105-1  Contracting by negotiation.

    Contracting by negotiation is usually appropriate for acquiring 
space in a building through a lease contract. You will usually need to 
conduct discussions with offerors about their proposals and consider 
factors other than price in making the award.

[[Page 297]]



Sec. 570.105-2  Two-phase design-build selection procedures.

    Unless you use another acquisition procedure authorized by law, you 
must use the two-phase design-build selection procedures in section 303M 
of the Federal Property and Administrative Services Act of 1949, as 
amended, for lease construction projects. This includes lease 
construction projects with options to purchase the real property leased. 
Use the procedures in section 303M when you meet the conditions in 
paragraphs (a) and (b) of this section:
    (a) You anticipate the lease will involve the design and 
construction of a public building, facility, or work for lease to the 
Government.
    (b) You determine the procedures are appropriate for entering into a 
lease construction contract based on the following:
    (1) You expect to receive three or more offers.
    (2) Offerors will need to perform design work before developing a 
price.
    (3) Offerors will incur a substantial amount of expense in preparing 
offers.
    (4) You consider criteria such as the following:
    (i) The extent to which the project requirements have been 
adequately defined.
    (ii) The time constraints for delivery of the project.
    (iii) The capability and experience of potential contractors.
    (iv) The suitability of the project for use of the two-phase 
selection procedures.
    (v) The capability of the agency to manage the two-phase selection 
process.
    (vi) Other criteria established by the HCA.



Sec. 570.105-3  Sealed bidding.

    For sealed bidding, use the procedures in FAR part 14. In most cases 
you should not use sealed bidding to acquire space in buildings unless 
you meet all the following conditions:
    (a) You have a preselected site.
    (b) A building will be constructed on the site using Government 
furnished plans and specifications.
    (c) The Government will lease the building.



Sec. 570.106  Publicizing/Advertising.

    (a) Subparts 505.101, 505.202, and 505.203 define requirements for 
publicizing lease actions.
    (b) Instead of issuing separate advertisements for multiple, known 
leasing actions, you may include the actions in one consolidated 
advertisement.



Sec. 570.107  Oral presentations.

    You may use oral presentations for acquisitions of leasehold 
interests in real property. Follow the procedures in FAR 15.102.



Sec. 570.108  Responsibility determination.

    (a) Determine that the prospective awardee is responsible with 
respect to the lease under consideration. The standards in FAR 9.104 
apply. As part of the determination that a prospective contractor is 
otherwise qualified and eligible for award, review the List of Parties 
Excluded from Federal Procurement and Nonprocurement Programs.
    (b) Your signature on the contract is deemed an affirmative 
determination.
    (c) If you find an offeror nonresponsible, sign and place in the 
contract file a determination of nonresponsibility. State the basis for 
the determination.
    (d) If you find a small business concern nonresponsible, the 
procedures at FAR 19.6 apply. Place all documents and reports supporting 
a determination of responsibility or nonresponsibility in the lease 
file.



Sec. 570.109  Certifications.

    Before awarding a lease, review applicable certifications for 
compliance with statute and regulations.



Sec. 570.110  Cost or pricing data and information other than cost or 
          pricing data.

    (a) The policies and procedures of FAR 15.403 apply to lease 
contract actions.
    (b) FAR 15.403-1 defines exceptions to and waivers for submitting 
cost or pricing data. Most leasing actions will have adequate price 
competition. For price analysis, you may use a market survey or an 
appraisal conducted using accepted real property appraisal procedures to 
establish a market price for comparison.

[[Page 298]]

    (c) In exceptional cases, the requirement for submission of 
certified cost or pricing data may be waived under FAR 15.403-1(c)(4).
    (d) If cost or pricing data are required, follow the procedures in 
FAR 15.403-4 and 15.406-2.



Sec. 570.111  Inspection and acceptance.

    Before you accept space, obtain an inspection to ensure that the 
space complies with the Government's requirements and specifications. 
Document the inspection and acceptance in the contract file.



Sec. 570.112  Awards to Federal employees.

    If you receive an offer from an officer or employee of the 
Government, follow the procedures in FAR 3.6.



Sec. 570.113  Disclosure of mistakes after award.

    If you discover a mistake in a lessor's offer after award, follow 
the procedures in FAR 14.407-4 and subpart 514.407-4.



Sec. 570.114  Protests.

    FAR 33.1 and 533.1 apply to protests of lease acquisitions.

          Subpart 570.2_Simplified Lease Acquisition Procedures



Sec. 570.201  Purpose.

    This subpart prescribes simplified procedures for small leases. 
These procedures reduce administrative costs, while improving efficiency 
and economy, when acquiring small leasehold interests in real property.



Sec. 570.202  Policy.

    Use simplified lease acquisition procedures to the maximum extent 
practicable for actions at or below the simplified lease acquisition 
threshold.



Sec. 570.203  Procedures.



Sec. 570.203-1  Market survey.

    Conduct a market survey to identify potential sources. Use 
information available in GSA or from other sources to identify locations 
that will meet the Government's requirements.



Sec. 570.203-2  Competition.

    (a) Solicit at least three sources to promote competition to the 
maximum extent practicable. If you have repeated requirements for space 
in the same market, and if practicable, invite two sources not included 
in the most recent solicitation to submit offers.
    (b) If you solicit only one source, document the file to explain the 
lack of competition.



Sec. 570.203-3  Soliciting offers.

    (a) Solicit offers by providing each prospective offeror a proposed 
short form lease or SFO. The short form lease or SFO must provide all 
the following information:
    (1) A description of the Government's requirements.
    (2) All award factors, including price or cost, and any significant 
subfactors you will consider in awarding the lease.
    (3) A statement of the relative importance of the evaluation factors 
and subfactors.
    (4) A statement of whether all evaluation factors other than cost or 
price, when combined, are either:
    (i) Significantly more important than cost or price.
    (ii) Approximately equal in importance to cost or price.
    (iii) Significantly less important than cost or price.
    (5) Either in full text or by reference, applicable FAR provisions 
and contract clauses required by 570.6.
    (b) As necessary, review with prospective offerors the Government's 
requirements, pricing matters, evaluation procedures and submissions of 
offers.



Sec. 570.203-4  Negotiations, evaluation, and award.

    (a) If you need to conduct negotiations, use the procedures in 
570.307.
    (b) Evaluate offers in accordance with the solicitation. Evaluate 
prices and document the lease file to demonstrate whether the proposed 
contract prices are fair and reasonable.
    (c) If the total price, including options, exceeds $500,000, 
consider whether you need cost and pricing data to determine that the 
price is fair and reasonable. In most cases the exceptions at FAR 
15.403-1 will apply.

[[Page 299]]

    (d) If the total contract value of the lease, including options, 
will exceed $500,000, the proposed awardee must provide an acceptable 
small business subcontracting plan. This requirement does not apply if 
the proposed awardee is a small business concern.
    (e) Make award to the responsible offeror whose proposal is most 
advantageous to the Government considering price and other factors 
included in the solicitation.

  Subpart 570.3_Contracting Procedures for Leasehold Interests in Real 
                                Property



Sec. 570.301  Market survey.

    Conduct a market survey to identify potential sources. Use 
information available in GSA or from other sources to identify locations 
capable of meeting the Government's requirements.



Sec. 570.302  Description of requirements.

    (a) The description of requirements depends on the nature of the 
space the agency needs and the market available to satisfy that need.
    (b) The description of requirements must include all the following:
    (1) A statement of the purpose of the lease.
    (2) Functional, performance, or physical requirements.
    (3) Any special requirements.
    (4) The delivery schedule.
    (c) The description must promote full and open competition. Include 
restrictive provisions or conditions only to the extent necessary to 
satisfy the agency's needs or as authorized by law.



Sec. 570.303  Solicitation for offers.



Sec. 570.303-1  Preparing the SFO.

    The SFO forms the basis for the lease negotiation process and 
becomes part of the lease. Document each SFO in writing or 
electronically. Include the information necessary to enable prospective 
offerors to prepare proposals. Each SFO, at a minimum, must provide all 
the following:
    (a) Describe the Government's requirements.
    (b) State the method the Government will use to measure space.
    (c) Explain how to structure offers.
    (d) Specify a date, time, and place for submission of offers.
    (e) Explain how the Government will evaluate offers.
    (f) Describe the source selection procedures the Government will 
use.
    (g) Include a statement outlining the information the Government may 
disclose in debriefings.
    (h) Include appropriate forms prescribed in 570.7.



Sec. 570.303-2  Issuing the SFO.

    Release the SFO to all prospective offerors at the same time.



Sec. 570.303-3  Late offers, modifications of offers, and withdrawals of 
          offers.

    Follow the procedures in FAR 15.208.



Sec. 570.303-4  Changes to SFOs.

    (a) If the Government's requirements change, either before or after 
receipt of proposals, issue an amendment. Document the amendment using 
the same method as for the SFO, written or electronic.
    (b) If time is critical, you may provide information on SFO 
amendments orally.
    (1) Make a record of the information provided.
    (2) Provide, or attempt to provide, the notice to all offerors or 
prospective offerors on the same day.
    (3) Promptly confirm the information provided orally in a written 
amendment.
    (c) Distribute an amendment as follows:
    (1) If before the proposal due date, send the amendment to all 
prospective offerors who were sent a copy of the SFO.
    (2) If after proposal receipt, send the amendment to each offeror 
who submitted a proposal.
    (d) If an amendment is so substantial that it requires a complete 
revision of the SFO, cancel the SFO and issue a new one.



Sec. 570.304  General source selection procedures.

    (a) These procedures apply to acquisitions of leasehold interests 
except if you use either:
    (1) Simplified lease acquisition procedures authorized by 570.2.

[[Page 300]]

    (2) Two-phase design-build selection procedures authorized by 
570.105-2.
    (b) The contracting officer is designated as the source selection 
official unless the HCA appoints another individual for a particular 
leasing action or group of leasing actions.
    (c) You must include price or cost to the Government and past 
performance as evaluation factors in every case.
    (d) The SFO must comply with FAR 15.304 and either:
    (1) FAR 15.101-1 if you will use the tradeoff process.
    (2) FAR 15.101-2 if you will use the lowest price technically 
acceptable source selection process.



Sec. 570.305  Two-phase design-build selection procedures.

    (a) These procedures apply to acquisitions of leasehold interests if 
you use the two-phase design-build selection procedures authorized by 
570.105-2.
    (b) The SFO must include all the following information:
    (1) The scope of work.
    (2) The evaluation factors and subfactors to be used in evaluating 
phase-one proposals and their relative importance.
    (3) The maximum number of offerors to be selected to submit 
competitive proposals in phase-two.
    (4) The evaluation factors, including cost or price, and subfactors 
to be used in evaluating phase-two proposals and selecting the 
successful offeror, and their relative importance.
    (c) The following procedures apply to phase-one evaluation factors:
    (1) Phase one factors include:
    (i) Specialized experience and technical competence.
    (ii) Capability to perform.
    (iii) Past performance of the offeror's team (including architect-
engineer and construction members of the team).
    (iv) Other appropriate factors, such as site or location.
    (2) Do not require offerors to submit detailed design information or 
cost or price information in phase one. Do not use cost related or price 
related evaluation factors.
    (d) Set the maximum number of offerors to be selected for phase-two 
to not exceed five (5) unless you determine that a number greater than 
five is both:
    (1) In the government's interest.
    (2) Consistent with the purpose and objectives of the two-phase 
selection process.
    (e) In phase-two, require detailed technical and price proposals. 
Evaluate the proposals using the procedures in 570.306.



Sec. 570.306  Evaluating offers.

    (a) You must evaluate offers solely in accordance with the factors 
and subfactors stated in the SFO.
    (b) Evaluate prices and document the lease file to demonstrate that 
the proposed contract price is fair and reasonable.
    (c) Evaluate past performance in accordance with FAR 15.305(a)(2).
    (d) Document the evaluation of award factors other than price listed 
in the solicitation. The file must include the basis for evaluation, an 
analysis of each offer, and a summary of findings.



Sec. 570.307  Negotiations.

    (a) Follow the procedures in FAR 15.306 and 15.307 for exchanges 
(including clarifications, communications, negotiations, discussions, 
and revisions).
    (b) Place a written record of all exchanges in the lease file.
    (c) Provide prompt written notice to any offeror excluded from the 
competitive range or otherwise eliminated from the competition in 
accordance with FAR 15.503(a).



Sec. 570.308  Award.

    (a) Make award to the responsible offeror whose proposal represents 
the best value after evaluation in accordance with the factors and 
subfactors in the SFO.
    (b) Make award in writing and in the timeframe specified in the SFO.
    (1) If you cannot make an award in that time, request in writing 
from each offeror an extension of the acceptance period through a 
specific date.
    (2) If time is critical, you may request the extensions orally. You 
must make a record of the requested and confirm it promptly in writing.
    (c) Notify unsuccessful offerors in writing or electronically in 
accordance with FAR 15.501 and 15.503(b).

[[Page 301]]

    (d) The source selection authority may reject all proposals received 
in response to an SFO, if doing so is in the best interest of the 
Government.



Sec. 570.309  Debriefings.

    The procedures of FAR 15.505 and 15.506 apply to leasing actions.

    Subpart 570.4_Special Aspects of Contracting for Continued Space 
                              Requirements



Sec. 570.401  Renewal options.

    (a) Exercise of options. Before exercising an option to renew, 
follow the procedures in 517.202 and 517.207. The contract must first 
provide the right to renew the lease.
    (b) Market survey. Before exercising an option to renew a lease, 
review current market information to ensure the rental rate in the 
option is fair and reasonable.



Sec. 570.402  Succeeding leases.



Sec. 570.402-1  General.

    (a) If a succeeding lease for the continued occupancy of space in a 
building does not exceed the simplified lease acquisition threshold, you 
may use the simplified procedures in 570.2. Explain the absence of 
competition in the contract file.
    (b) If a succeeding lease will exceed the simplified lease 
acquisition threshold, you may enter into the lease under either of the 
following conditions:
    (1) You do not identify any potential acceptable locations.
    (2) You identify potential acceptable locations, but a cost-benefit 
analysis indicates that award to an offeror other than the present 
lessor will result in substantial relocation costs or duplication of 
costs to the Government, and the Government cannot expect to recover 
such costs through competition.



Sec. 570.402-2  Publicizing/Advertising.

    Publish a notice if required by 505.101(c). The notice should:
    (a) Indicate the Government's lease is expiring.
    (b) Describe the requirement in terms of type and quantity of space.
    (c) Indicate the Government is interested in considering alternative 
space if economically advantageous.
    (d) Advise prospective offerors that the Government will consider 
the cost of moving, alterations, etc., when deciding whether it should 
relocate.
    (e) Provide a contact person for those interested in providing space 
to the Government.



Sec. 570.402-3  Market survey.

    Conduct a market survey following 570.301.



Sec. 570.402-4  No potential acceptable locations.

    If you do not identify any potential acceptable locations through 
the advertisement or the market survey, you may prepare a justification 
to negotiate directly with the present lessor. Fully document the 
efforts to locate alternative sources. Prepare the justification and 
obtain approval following FAR 6.3 and 506.3.



Sec. 570.402-5  Potential acceptable locations.

    If you identify potential acceptable locations through the 
advertisement or market survey, conduct a cost-benefit analysis 
following the procedures in 570.402-6. Based on the results of the cost-
benefit analysis, take appropriate action as follows:
    (a) If the cost-benefit analysis indicates that the Government will 
recover relocation costs and duplication of costs through competition, 
develop an SFO and negotiate with all interested parties following 
570.3.
    (b) If the cost-benefit analysis indicates that the Government 
cannot expect to recover relocation costs and duplication of costs 
through competition, prepare a justification for approval in accordance 
with FAR 6.3 and 506.3. Explain both:
    (1) How you performed the cost-benefit analysis.
    (2) That the cost-benefit analysis indicates that award to any other 
offeror will likely result in substantial costs to the Government that 
the Government cannot expect to recover through competition.

[[Page 302]]



Sec. 570.402-6  Cost-benefit analysis.

    (a) The cost-benefit analysis must consider all the following:
    (1) The prices of other potentially available properties.
    (2) Relocation costs, including estimated costs for moving, 
telecommunications, and alterations, amortized over the firm term of the 
lease.
    (3) Duplication of costs to the Government.
    (4) Other appropriate considerations.
    (b) Establish the prices for other potentially available properties 
by requesting each prospective offeror to provide an informational 
quotation for standard space for comparison purposes.
    (1) Adjust the prices quoted for standard space for any special 
requirements.
    (2) You do not need a formal SFO to obtain the informational 
quotation. However, you must provide a general description of the 
Government's needs.
    (3) If you obtain oral quotations, document the following 
information, as a minimum:
    (i) Name and address of the firm solicited.
    (ii) Name of the firm's representative providing the quote.
    (iii) Price(s) quoted.
    (iv) Description of the space and services for which the quote is 
provided.
    (v) Name of the Government employee soliciting the quotation.
    (vi) Date of the conversation.
    (4) Compare the informational quotations to the present lessor's 
price, adjusted to reflect the anticipated price for a succeeding lease.



Sec. 570.403  Expansion requests.

    (a) If the expansion space is in the general scope of the lease, you 
may acquire the space through a modification without further 
justification under FAR 6.3.
    (b) If the expansion space needed is outside the general scope of 
the lease, determine whether it is more prudent to provide the expansion 
space by supplemental agreement to the existing lease or to satisfy the 
requirement by competitive means.
    (1) Conduct a market survey to determine the availability of 
suitable alternative locations.
    (2) If you identify alternate locations that can satisfy the total 
requirement, perform a cost-benefit analysis to determine whether it is 
in the Government's best interest to relocate. Consider, as appropriate.
    (i) The cost of the alternate space compared to the cost of 
expanding at the existing location.
    (ii) The cost of moving.
    (iii) The cost of duplicating existing improvements.
    (iv) The cost of the unexpired portion of the firm lease term. If a 
termination is possible, use the actual cost of such an action.
    (v) the cost of disruption to the agency's operation.
    (c) If you determine not to use competitive procedures and the 
expansion space is outside the general scope of the lease:
    (1) If the estimated value of the acquisition does not exceed the 
simplified lease acquisition threshold, document the file as required by 
570.203-2(b).
    (2) If the estimated value of the acquisition exceeds the simplified 
lease acquisition threshold, prepare a justification for approval under 
FAR 6.3 and 506.3.



Sec. 570.404  Superseding leases.

    (a) Consider executing a superseding lease to replace an existing 
lease when the Government need numerous or detailed modifications to the 
space that would cause complications or substantially change the present 
lease.
    (b) If the value of the superseding lease exceeds the simplified 
lease acquisition threshold, the justification and approval requirements 
in FAR 6.3 and 506.3 apply. If the cost does not exceed the simplified 
lease acquisition threshold, you may use the simplified procedures in 
570.2 and explain the absence of competition in the file.



Sec. 570.405  Lease extensions.

    (a) This section applies to extension of the term of a lease to 
provide for continued occupancy on a short-term basis.
    (b) If the value of a lease extension will exceed the simplified 
lease acquisition threshold, the justification and approval requirements 
in FAR 6.3 and 506.3 apply. For extensions that will

[[Page 303]]

not exceed the simplified lease acquisition threshold, you may use the 
simplified procedures in 570.2 and explain the absence of competition in 
the file.
    (c) FAR 6.302-1 permits contracting without providing for full and 
open competition when the property or services needed by the agency are 
available from only one responsible source and no other type of property 
or services will satisfy the needs of the agency. This authority may 
apply to lease extensions in situations such as the following:
    (1) The agency occupying the leased space is scheduled to move into 
other Federally controlled space, but encounters unexpected delays in 
preparing the new space for occupancy.
    (2) The Government encounters unexpected delays outside of its 
control in acquiring replacement space.
    (3) The Government is consolidating various agencies occupying the 
leased space and you need to extend the terms of some leases to 
establish a common expiration date.

   Subpart 570.5_Special Aspects of Contracting for Lease Alterations



Sec. 570.501  General.

    (a) Acquire alterations through a modification to an existing lease 
if you meet all the following conditions:
    (1) The alterations fall in the general scope of the lease. Consider 
whether the work can be regarded as fairly and reasonably an inseparable 
part of the lease requirement originally contracted for.
    (2) The lessor is willing to perform the proposed alterations at a 
fair and reasonable price.
    (3) It is in the Government's interest to acquire the alterations 
from the lessor.
    (b) If proposed alterations are outside the general scope of the 
existing lease, decide whether to acquire the alterations through 
either:
    (1) A supplemental lease agreement, justified and approved under 
570.502-1.
    (2) Government performance or a separate contract. The lease must 
first provide the Government the right to perform alterations to the 
leased space.



Sec. 570.502  Alterations by the lessor.

    These procedures apply to alterations you acquire directly from a 
lessor by modification or supplement lease agreement.



Sec. 570.502-1  Justification and approval requirements.

    If the proposed alterations are outside the general scope of the 
lease and you plan to acquire them from the lessor without competition, 
the following justification and approval requirements apply:
    (a) If the alteration project will exceed the simplified lease 
acquisition threshold, the justification and approval requirements in 
FAR 6.3 and 506.3 apply.
    (b) If the alteration project will exceed $2,500, but not the 
simplified lease acquisition threshold, you may use simplified 
acquisition procedures and explain the absence of competition in the 
file.
    (c) If the alternation project will not exceed $2,500, no 
justification and approval is required.



Sec. 570.502-2  Procedures.

    (a) Scope of work. Prepare a scope of work for each alteration 
project.
    (b) Independent Government estimate. Obtain an independent 
Government estimate for each alteration project, including changes to 
existing alteration agreements with the lessor.
    (c) Request for proposal. (1) Provide the scope of work to the 
lessor, including any plans and specifications, and request a proposal. 
Indicate in the request for proposal if the Government will make 
progress payments and provide for retainage, when appropriate.
    (2) Request sufficient cost or price information to permit a price 
analysis.
    (d) Audits. If you require cost or pricing data and the alteration 
project will exceed $500,000, request an audit.
    (e) Proposal evaluation. (1) Determine if the proposal meets the 
Government's requirements.
    (2) Analyze price or cost. At a minimum, compare the proposed cost 
to the independent estimate and, if applicable, any audit received.
    (3) Analyze profit following FAR 15.404-4.

[[Page 304]]

    (4) Document your analysis under this paragraph and the resulting 
negotiation objectives.
    (f) Price negotiations. (1) Exercise sound judgment. You may make 
reasonable compromises as necessary.
    (2) The negotiated price should provide the lessor with the greatest 
incentive for efficient and economical performance.
    (3) Document negotiations in the contract file.
    (g) Award. Use GSA Form 276, Supplemental Lease Agreement. If the 
modification does not exceed the simplified acquisition threshold, you 
may use GSA Form 300, Order for Supplies or Services. Reference the 
lease on the form.
    (h) Inspection and payment. Do not make final payment for 
alterations until the work is:
    (1) Inspected by a qualified Government employee or independent 
Government contractor.
    (2) Confirmed as completed in a satisfactory manner.

[64 FR 37265, July 9, 1999; 64 FR 49844, Sept. 14, 1999]



Sec. 570.503  Alterations by the Government or through a separate 

contract.

    (a) If the Government chooses to exercise its right to make the 
alterations rather than contracting directly with the lessor, the 
Government may either:
    (1) Have Federal employees perform the work.
    (2) Contract out the work using standard contracting procedures that 
apply to a construction contract performed on Federal property.
    (b) If the Government decides to contract for the work, invite the 
lessor, as well as all other prospective contractors, to submit an offer 
for the project.

       Subpart 570.6_Solicitation Provisions and Contract Clauses



Sec. 570.601  FAR provisions and clauses.

    Include provisions or clauses substantially the same as the 
following FAR provisions and clauses.

------------------------------------------------------------------------
             If . . .                        Then include . . .
------------------------------------------------------------------------
(a) the estimated value of the      52.204-3 Taxpayer Identification.
 acquisition exceeds $2,500.        52.219-1 Small Business Program
                                     Representations.
                                    52.222-36 Affirmative Action for
                                     Workers with Disabilities.
                                    52.232-23 Assignment of Claims.
                                    52.233-1 Disputes.
(b) the estimated value of the      52.222-21 Prohibition of Segregated
 acquisition exceeds $10,000.        Facilities.
                                    52.222-22 Previous Contracts and
                                     Compliance Reports.
                                    52.222-25 Affirmative Action
                                     Compliance.
                                    52.222-26 Equal Opportunity.
                                    52.222-35 Affirmative Action for
                                     Disabled Veterans and Veterans of
                                     the Vietnam Era.
                                    52.222-37 Employment Reports on
                                     Disabled Veterans and Veterans of
                                     the Vietnam Era.
(c) the estimated value of the      52.209-6 Protecting the Government's
 acquisition exceeds $25,000.        Interest when Subcontracting with
                                     Contractors Debarred, Suspended, or
                                     Proposed for Debarment.
(d) the estimated value of the      52.203-11 Certification and
 acquisition exceeds $100,000.       Disclosure Regarding Payments to
                                     Influence Certain Federal
                                     Transactions.
(e) the estimated value of the      52.203-2 Certificate of Independent
 acquisition exceeds the             Price Determination.
 simplified lease acquisition       52.203-7 Anti-Kickback Procedures.
 threshold.                         52.209-5 Certification Regarding
                                     Debarment, Suspension, Proposed
                                     Debarment, and Other Responsibility
                                     Matters.
                                    52.215-2 Audit and Records--
                                     Negotiation.
                                    52.219-8 Utilization of Small
                                     Business Concerns.
                                    52.223-6 Drug-Free Workplace.
                                    52.233-2 Service of Protest.
(f) the estimated value of the      52.219-9 Small Business
 acquisition exceeds $500,000.       Subcontracting Plan.
                                    52.219-16 Liquidated Damages--
                                     Subcontracting Plan.
(g) the estimated value of the      52.219-24 Small Disadvantaged
 acquisition exceeds $500,000 and    Business Participation Program--
 the acquisition includes an         Targets.
 evaluation factor that considers   52.219-25 Small Disadvantaged
 the extent of participation of      Business Participation Program--
 small disadvantaged business        Disadvantaged Status and Reporting.
 concerns in accordance with FAR
 19.12.

[[Page 305]]

 
(h) the estimated value of the      52.222-24 Preaward On-Site Equal
 acquisition exceeds $10 million.    Opportunity Compliance Review.
(i) you require cost or pricing     52.215-10 Price Reduction for
 data for work or services           Defective Cost or Pricing Data.
 exceeding $500,000.                52.215-12 Subcontractor Cost or
                                     Pricing Data.
(j) you authorize submission of     52.215-5 Facsimile Proposals.
 facsimile proposals.
(k) a negotiated acquisition        52.219-26 Small Disadvantaged
 provides monetary incentives        Business Participation Program--
 based on actual achievement of      Incentive Subcontracting.
 small disadvantaged business
 subcontracting targets under FAR
 19.1203 and 519.1203.
------------------------------------------------------------------------



Sec. 570.602  GSAR solicitation provisions.

    Each SFO must include provisions substantially the same as the 
following, unless you determine that the provision is not appropriate:


Sec. 552.270-1 Instructions to Offerors--Acquisition of Leasehold 
          Interests in Real Property. Use Alternate I if you decide that 
          it is advantageous to the Government to allow offers to be 
          submitted up to the exact time specified for award. Use 
          Alternate II if the Government intends to award without 
          discussions. These two alternates are not exclusive.

Sec. 552.270-2 Historic Preference.

Sec. 552.270-3 Parties to Execute Lease.



Sec. 570.603  GSAR contract clauses.

    Insert clauses substantially the same as the following in 
solicitations and contracts for leasehold interests in real property 
that exceed the simplified lease acquisition threshold, unless you 
determine that a clause is not appropriate. You do not require a 
deviation under 570.604 to determine that a clause in this section is 
not appropriate. Use the clauses at your discretion in actions at or 
below the simplified lease acquisition threshold.


Sec. 552.270-4 Definitions. You must use this clause if you use 570.270-
          28.

Sec. 552.270-5 Subletting and Assignment.

Sec. 552.270-6 Maintenance of Building and Premises--Right of Entry.

Sec. 552.270-7 Fire and Casualty Damage.

Sec. 552.270-8 Compliance with Applicable Law.

Sec. 552.270-9 Inspection--right of Entry.

Sec. 552.270-10 Failure in Performance.

Sec. 552.270-11 Successors Bound.

Sec. 552.270-12 Alterations.

Sec. 552.270-13 Proposals for Adjustment.

Sec. 552.270-14 Changes.

Sec. 552.270-15 Liquidated Damages. Insert this clause in solicitations 
          and contracts if you have a critical requirement to meet the 
          delivery date and you cannot establish an actual cost for the 
          loss to the Government resulting from late delivery.

Sec. 552.270-16 Adjustment for Vacant Premises.

Sec. 552.270-17 Delivery and Condition.

Sec. 552.270-18 Default in Delivery--Time Extensions.

Sec. 552.270-19 Progressive Occupancy.

Sec. 552.270-20 Payment.

Sec. 552.270-21 Effect of Acceptance and Occupancy.

Sec. 552.270-22 Default by Lessor During the Term.

Sec. 552.270-23 Subordination, Nondisturbance and Attornment

Sec. 552.270-24 Statement of Lease.

Sec. 552.270-25 Substitution of Tenant Agency.

Sec. 552.270-26 No Waiver.

Sec. 552.270-27 Integrated Agreement.

Sec. 552.270-28 Mutuality of Obligation.

Sec. 552.270-29 Acceptance of Space.



Sec. 570.604  Deviations to provisions and clauses.

    (a) You need a deviation approved under 501.4 to omit any required 
provision or clause.
    (b) You also need an approved deviation to modify the language of a 
provision or clause mandated by statute (e.g., GSAR 552.203-5, Covenant 
Against Contingent Fees, FAR 52.215-2, Audit and Records--Negotiation). 
The authorizing statue must allow for a waiver.
    (c) Certain clauses required by non-GSA regulations require approval 
of the issuing agency before you can delete or modify them. For example, 
52.222-26, Equal Opportunity; 52.222-35, Affirmative Action for Disabled 
Veterans and Veterans of the Vietnam Era; and 52.222-36, Affirmative 
Action for Workers with Disabilities, require the approval of the 
Department of Labor's Office of Federal Contract Compliance Programs 
before they can be deleted from or modified in the SFO or lease.

[[Page 306]]

                           Subpart 570.7_Forms



Sec. 570.701  Standard forms.

    Use Standard Form 2, U.S. Government Lease for Real Property, to 
award leases unless you use GSA Form 3626 (see 570.702). Delete the 
reference to the Standard Form 2-A in paragraph 7.



Sec. 570.702  GSA forms.

    (a) You may use GSA Form 3626, U.S. Government Lease for Real 
Property (Short Form), to award leases if you use the simplified leasing 
procedures in 570.2 or if you determine it advantageous to use.
    (b) You may use GSA Form 276, Supplemental Lease Agreement, for 
actions requiring the agreement of both parties. This includes actions 
such as amending an existing lease to acquire additional space, 
obtaining partial release of space, revising the terms of a lease, 
settling restoration claims, and acquiring alterations.
    (c) You may use GSA Form 1364, Proposal To Lease Space, to obtain 
offers from prospective offerors.

[[Page 307]]



                     CHAPTER 6--DEPARTMENT OF STATE




                           (Parts 600 to 699)

  --------------------------------------------------------------------

                          SUBCHAPTER A--GENERAL
Part                                                                Page
601             Department of State Acquisition Regulations 
                    System..................................         309
602             Definitions of words and terms..............         314
603             Improper business practices and personal 
                    conflicts of interest...................         314
604             Administrative matters......................         317
           SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
605             Publicizing contract actions................         318
606             Competition requirements....................         319
607             Acquisition planning........................         321
609             Contractor qualifications...................         322
611             Describing agency needs.....................         325
612             Acquisition of commercial items.............         328
          SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
613             Simplified acquisition procedures...........         329
614             Sealed bidding..............................         329
615             Contracting by negotiation..................         330
616             Types of contracts..........................         331
617             Special contracting methods.................         332
                  SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
619             Small business programs.....................         334
622             Application of labor laws to Government 
                    acquisitions............................         343
623             Environment, energy and water efficiency, 
                    renewable energy technologies, 
                    occupational safety, and drug-free 
                    workplace...............................         345
624             Protection of privacy and freedom of 
                    information.............................         346

[[Page 308]]

625             Foreign acquisition.........................         346
             SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
627             Patents, data, and copyrights...............         348
628             Bonds and insurance.........................         348
629             Taxes.......................................         350
630             Cost accounting standards administration....         351
631             Contract cost principles and procedures.....         351
632             Contract financing..........................         352
633             Protests, disputes, and appeals.............         354
             SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
634             Major system acquisition....................         357
636             Construction and architect-engineer 
                    contracts...............................         357
637             Service contracting.........................         359
639             Acquisition of information technology.......         360
641             Acquisition of utility services.............         361
                    SUBCHAPTER G--CONTRACT MANAGEMENT
642             Contract administration and audit services..         362
643             Contract modifications......................         363
644             Subcontracting policies and procedures......         364
645             Government property.........................         364
647             Transportation..............................         364
648             Value engineering...........................         365
649             Termination of contracts....................         365
651             Use of Government sources by contractors....         365
                     SUBCHAPTER H--CLAUSES AND FORMS
652             Solicitation provisions and contract clauses         366
653             Forms.......................................         391

[[Page 309]]

                          SUBCHAPTER A_GENERAL

       PART 601_DEPARTMENT OF STATE ACQUISITION REGULATIONS SYSTEM

Sec.

Sec. 601.000 Scope of part.

               Subpart 601.1_Purpose, Authority, Issuance


Sec. 601.101 Purpose.

Sec. 601.105 Issuance.

Sec. 601.105-3 Copies.

Sec. 601.106 OMB approval under the Paperwork Reduction Act.

                      Subpart 601.2_Administration


Sec. 601.201 Maintenance of the FAR.

Sec. 601.201-1 The two councils.

              Subpart 601.3_Agency Acquisition Regulations


Sec. 601.301 Policy.

Sec. 601.302 Limitations.

Sec. 601.303 Publication and codification.

                  Subpart 601.4_Deviations from the FAR


Sec. 601.403 Individual deviations.

Sec. 601.404 Class deviations.

Sec. 601.405 Deviations pertaining to treaties and executive agreements.

Sec. 601.470 Deviations from the DOSAR.

              Subpart 601.5_Agency and Public Participation


Sec. 601.570 Rulemaking.

      Subpart 601.6_Career Development, Contracting Authority, and 
                            Responsibilities


Sec. 601.601 General.

Sec. 601.602 Contracting officers.

Sec. 601.602-1 Authority.

Sec. 601.603 Selection, appointment, and termination of appointment.

Sec. 601.603-1 General

Sec. 601.603-3 Appointment.

Sec. 601.603-70 Delegations of authority.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26159, July 11, 1988, unless otherwise noted.



Sec. 601.000  Scope of part.

    This part describes the Department of State Acquisition Regulation 
(DOSAR) in terms of establishment, relationship to the Federal 
Acquisition Regulation (FAR), arrangement, applicability, and deviation 
procedures.

[53 FR 26159, July 11, 1988, as amended at 59 FR 66750, Dec. 28, 1994]

               Subpart 601.1_Purpose, Authority, Issuance



Sec. 601.101  Purpose.

    The DOSAR is issued to provide Department guidance in accordance 
with the policy cited in FAR 1.301(a)(2). The portions of this 
regulation that affects the relationship between a Department of State 
organization and a contractor or potential contractor are published in 
this chapter 6 of title 48 of the Code of Federal Regulations, in 
accordance with FAR 1.301(b).

[59 FR 66750, Dec. 28, 1994]



Sec. 601.105  Issuance.



Sec. 601.105-3  Copies.

    The DOSAR is available through the Department's Intranet system at 
http://aope.a.state.gov, or through the Internet from A/OPE's 
Acquisition Web site. The Internet address is: http://
www.statebuy.state.gov/.

[69 FR 19329, Apr. 13, 2004]



Sec. 601.106  OMB approval under the Paperwork Reduction Act.

    The Paperwork Reduction Act of 1980 (44 U.S.C. 3501-3520) requires 
that Federal agencies obtain approval from the Office of Management and 
Budget before collecting information from ten (10) or more members of 
the public. Individuals are not required to respond to information 
collection unless the OMB number and burden estimate information is 
provided. Accordingly, the information and recordkeeping requirements 
contained in this regulation have been approved by OMB under OMB Control 
Number 1405-0050. The burden estimate is 225,503 hours. The information 
and recordkeeping requirements for Form DS-4053, Department of State 
Mentor-Prot[eacute]g[eacute] Program Application, have been approved by 
OMB under

[[Page 310]]

OMB Control Number 1405-0161; the burden estimate is 294 hours.

[64 FR 43620, Aug. 11, 1999, as amended at 69 FR 19329, Apr. 13, 2004; 
71 FR 34839, June 16, 2006]

                      Subpart 601.2_Administration



Sec. 601.201  Maintenance of the FAR.



Sec. 601.201-1  The two councils.

    The Office of the Procurement Executive (A/OPE) represents the 
Department of State (DOS) on the Civilian Agency Acquisition Council. 
The Procurement Executive shall appoint a representative for this 
purpose. A/OPE is responsible for coordinating with all interested DOS 
elements proposed FAR revisions and for advocating FAR revisions sought 
by the Department.

[53 FR 26159, July 11, 1988, as amended at 59 FR 66750, Dec. 28, 1994]

              Subpart 601.3_Agency Acquisition Regulations



Sec. 601.301  Policy.

    (a) The Assistant Secretary of State for Administration is the 
agency head for the purposes of FAR 1.301 (see Delegation of Authority 
No. 120 (34 FR 18095, October 30, 1969), as amended by Delegation of 
Authority No. 120-4 (59 FR 38022, July 26, 1994)). Under Delegation of 
Authority No. 120-5 (59 FR 62771, December 6, 1994), the Assistant 
Secretary of State for Administration redelegated to the Procurement 
Executive the authority to prescribe, promulgate, and amend DOS 
acquisition policies, rules, and regulations.
    (b) The Department of State Acquisition Regulation (DOSAR) is 
prescribed under the authority of 22 U.S.C. 2658 and 40 U.S.C. 486(c).
    (c) The DOSAR implements and supplements the FAR.

[59 FR 66751, Dec. 28, 1994, as amended at 64 FR 43620, Aug. 11, 1999]



Sec. 601.302  Limitations.

    (a) The FAR and the DOSAR apply to all DOS acquisitions of personal 
property and services, including construction, both within and outside 
the United States, unless expressly excluded by this subpart, or exempt 
from the Federal Property and Administrative Services Act of 1949, as 
amended (40 U.S.C. 474(7)), or undertaken pursuant to section 208 of the 
State Department Basic Authorities Act of 1956, as amended (22 U.S.C. 
4308), or the Foreign Service Buildings Act of 1926, as amended (22 
U.S.C. 292 et seq.).
    (b) At posts where Joint Administrative Offices have been formed, 
the FAR and the DOSAR apply to all Agency for International Development 
(AID) administrative and technical support acquisitions, except in those 
areas which have been exempted by the cognizant administrative office.

[53 FR 26159, July 11, 1988, as amended at 59 FR 66751, Dec. 28, 1994; 
64 FR 43620, Aug. 11, 1999]



Sec. 601.303  Publication and codification.

    (a) The DOSAR is issued as Chapter 6 of Title 48, Code of Federal 
Regulations. The DOSAR is established as Chapter 6 of the Federal 
Acquisition Regulations System. The DOSAR is divided into the same 
parts, subparts, sections, subsections, and paragraphs as is the FAR. 
However, when the FAR coverage is adequate by itself there will be no 
corresponding DOSAR coverage. Where the DOSAR implements a specific 
part, subpart, section, or subsection of the FAR, the DOSAR coverage is 
numbered and titled to correspond to the appropriate FAR number and 
title, except that the DOSAR number will include a 6 or 60 such that 
there will always be three numbers to the left of the decimal. For 
example, the DOSAR implementation of FAR 14.1 is shown as 614.1 and the 
DOSAR implementation of FAR 1.301 is shown as 601.301. Materials that 
supplement the FAR are assigned the numbers 70 and up. For example, 
DOSAR requires additional definitions than those used in FAR; this 
supplementary material is provided in 602.101-70.
    (b) The DOSAR and its revisions are published in the Federal 
Register and in the Code of Federal Regulations, both of which may be 
purchased from the Superintendent of Documents, Government Printing 
Office, Washington, DC 20402.

[[Page 311]]

    (c) The DOSAR shall be referenced in the same manner as described at 
FAR 1.105-2(c).

[53 FR 26159, July 11, 1988, as amended at 59 FR 66751, Dec. 28, 1994; 
64 FR 43620, Aug. 11, 1999]

                  Subpart 601.4_Deviations from the FAR



Sec. 601.403  Individual deviations.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 1.403.

[53 FR 26159, July 11, 1988, as amended at 59 FR 66751, Dec. 28, 1994]



Sec. 601.404  Class deviations.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 1.404(a).

[53 FR 26159, July 11, 1988, as amended at 59 FR 66751, Dec. 28, 1994]



Sec. 601.405  Deviations pertaining to treaties and executive 

agreements.

    The Procurement Executive shall determine whether a deviation 
pertaining to treaties and executive agreements is authorized under FAR 
1.405 or that a request for deviation is required under FAR 1.405(e).

[53 FR 26159, July 11, 1988, as amended at 59 FR 66751, Dec. 28, 1994]



Sec. 601.470  Deviations from the DOSAR

    The authority to approve any deviations from the DOSAR is reserved 
to the Procurement Executive.

[53 FR 26159, July 11, 1988, as amended at 59 FR 66751, Dec. 28, 1994]

              Subpart 601.5_Agency and Public Participation



Sec. 601.570  Rulemaking.

    (a) The DOSAR is promulgated and may be revised, as necessary, in 
accordance with FAR part 1.
    (b) The Procurement Executive shall issue all DOS acquisition 
regulations.

[59 FR 66751, Dec. 28, 1994]

      Subpart 601.6_Career Development, Contracting Authority, and 
                            Responsibilities



Sec. 601.601  General.

    The Procurement Executive is the agency head for the purposes of FAR 
1.601.



Sec. 601.602  Contracting officers.



Sec. 601.602-1  Authority.

    (a) DOS contracts are awarded pursuant to the foreign affairs 
management responsibilities conferred on the Secretary of State (22 
U.S.C. 2656), and the various laws, regulations, and Executive Orders 
relating thereto.
    (b) Except as otherwise provided by law, DOS regulations, and this 
DOSAR, the Procurement Executive has the authority to execute, award, 
and administer contracts, purchase orders, other contractual 
arrangements, and other agreements, including FAR-covered interagency 
acquisition agreements, for the expenditure of funds involved in the 
acquisition of personal property, services, and for the sale of personal 
property. The Procurement Executive may further delegate this authority 
to those DOS employees appointed or designated to the contracting 
activities enumerated in 601.603-70.
    (c) The contracting officer shall not award, modify, or terminate a 
contract unless all reviews, clearances, and approvals prescribed in the 
FAR or the DOSAR have been obtained, and all applicable requirements of 
law, the FAR, the DOSAR, and other regulations have been met.

[53 FR 26159, July 11, 1988, as amended at 55 FR 5774, Feb. 16, 1990; 59 
FR 66751, Dec. 28, 1994; 72 FR 45695, Aug. 15, 2007]



Sec. 601.603  Selection, appointment, and termination of appointment.



Sec. 601.603-1  General.

    Details of the Department's acquisition career management program 
are described in 14 FAH-3, Acquisition Career Management Program 
Handbook, which is available on the Internet at http://foia.state.gov/
REGS/search.asp.

[72 FR 45695, Aug. 15, 2007]

[[Page 312]]



Sec. 601.603-3  Appointment.

    (a) General. There is no contracting officer authority conferred 
upon any DOS employee by virtue of position. The Procurement Executive 
appoints all DOS contracting officers, in conformance with FAR 1.603-3, 
with the one exception as noted in paragraph (b) of this section. The 
contracting officer shall retain the original copy of the Standard Form 
1402, Certificate of Appointment, signed by the Procurement Executive. 
Only qualified employees shall be appointed as contracting officers. A/
OPE is responsible for providing guidance and oversight in managing such 
appointments.
    (b) Temporary warrants. The Chief of Mission is delegated the 
authority by the Procurement Executive to issue temporary contracting 
officer warrants for periods up to 90 calendar days in order to cover 
emergency, post-specific operational requirements (e.g., staffing gaps, 
medical evacuations, extended leave, etc.). These temporary appointments 
shall be executed on the Standard Form 1402, and a copy shall be 
furnished to A/OPE. The warrant shall contain both a dollar limitation 
of no more than $100,000 and a specific time period (not to exceed 90 
days) during which the warrant is effective.
    (c) Non-Federal employees. Only United States Government direct-hire 
employees who are U.S. citizens shall be appointed as contracting 
officers. Personal services contractors, Foreign Service Nationals, and 
Third Country Nationals are not eligible for appointment as DOS 
contracting officers.
    (d) Personal services agreements. Individuals who may sign personal 
services agreements (PSAs) are limited to the following:
    (1) The Human Resources Officer;
    (2) The Human Resources/Financial Management Officer; or,
    (3) The Management Officer or an American Foreign Service Officer 
designated to perform human resource functions.

[59 FR 66752, Dec. 28, 1994, as amended at 64 FR 43620, Aug. 11, 1999; 
69 FR 19330, Apr. 13, 2004]



Sec. 601.603-70  Delegations of authority.

    (a) Delegations. As stated in 601.603-3(a), there is no contracting 
officer authority conferred by virtue of position. Pursuant to 601.602-
1(b), the Procurement Executive has designated the following as 
contracting activities as defined in FAR 2.101. These authorities are 
not redelegable. In addition, specific individuals are designated as 
heads of contracting activities (HCAs) (see FAR 2.101):
    (1) Overseas posts. Each overseas post shall be regarded as a 
contracting activity to enter into and administer contracts for the 
expenditure of funds involved in the acquisition of supplies, equipment, 
publications, and services. The Principal Officer, the Management 
Officer, or the Supervisory General Services Officer are designated as 
HCAs; provided, that he/she has a contracting officer's warrant issued 
by the Procurement Executive. The Procurement Executive (or authorized 
A/OPE staff) may delegate to a contracting officer, on a case-by-case 
basis, the authority to award a contract or modification which exceeds 
the contracting officer's warrant level.
    (i) No authority is delegated to enter into cost-reimbursement, 
fixed-price incentive, or fixed-price redeterminable contracts. Design/
build solicitations and contracts may only be entered into with the 
written approval of A/OPE and OBO. Proposed construction contracts 
exceeding $500,000 and any related architect-engineer contracts must 
have prior A/OPE approval.
    (ii) When expressly authorized by a U.S. Government agency which 
does not have a contracting officer at the post, the officers named in 
paragraph (a)(1) introductory text of this section may enter into 
contracts for that agency. Use of this authority is subject to the 
statutory authority of that agency and any special contract terms or 
other requirements necessary for compliance with any conditions or 
limitations applicable to the funds of that agency. The agency's 
authorization shall cite the statute(s) and state any special contract 
terms or other requirements with which the acquisition so authorized 
must comply. In view of the contracting officer's responsibility

[[Page 313]]

for the legal, technical, and administrative sufficiency of contracts, 
questions regarding the propriety of contracting actions that the post 
is required to take pursuant to this authority may be referred to the 
Department for resolution with the headquarters of the agency concerned.
    (2) Office of Logistics Management; Office of Acquisition Management 
(A/LM/AQM). The authority to enter into and administer contracts for the 
expenditure of funds involved in the acquisition of supplies and 
services, including construction, is delegated to the Director or 
designee as the HCA.
    (3) Foreign Service Institute. The authority to enter into and 
administer contracts pursuant to Chapter 7, Title I, of the Foreign 
Service Act of 1980, as amended (22 U.S.C. 4021 et seq.), is delegated 
to the Director of the Foreign Service Institute, the Executive 
Director, the Deputy Executive Director, and the Supervisory Contracting 
Officer as the HCA.
    (4) Office of Foreign Missions. The authority to enter into and 
administer contracts pursuant to Title II of the State Department Basic 
Authorities Act of 1956, as amended (22 U.S.C. 4301 et seq.), is 
delegated to the Director, Office of Foreign Missions, and the 
Administrative Officer as the HCA.
    (5) U.S. Mission to the United Nations. The authority to enter into 
and administer contracts pursuant to the United Nations Participation 
Act of 1945, as amended (22 U.S.C. 287), is delegated to the Counselor 
for Administration as the HCA.
    (6) Regional Procurement Support Offices. The authority to enter 
into and administer contracts for the expenditure of funds involved in 
the acquisition of supplies, equipment, publications, and services on 
behalf of overseas posts is delegated to each Director, Regional 
Procurement Support Office (RPSO) as the HCA at the following locations:
    (i) RPSO Frankfurt in conjunction with Consulate General Frankfurt; 
and
    (ii) RPSO Florida in conjunction with the Florida Regional Center.
    (b) Other delegations. Several DOS offices have been delegated 
limited procurement authority, although they have not been designated as 
HCAs. Matters requiring HCA resolution are referred to the A/LM/AQM. 
These delegations are provided only to warranted contracting officers in 
the respective offices. They are as follows:
    (1) Office of Language Services. The authority to enter into and 
administer simplified acquisition transactions under FAR Part 13 and 
orders against existing contracts up to the maximum ordering threshold 
or limitation for interpreting, translating, conference reporting, and 
related language support and escort services.
    (2) Office of Overseas Schools. The authority to enter into and 
administer simplified acquisition transactions under FAR Part 13 and 
orders against existing contracts up to the maximum ordering threshold 
or limitation pursuant to section 29 of the State Department Basic 
Authorities Act of 1956, as amended.
    (3) Library. The authority to enter into and administer simplified 
acquisition transactions under FAR Part 13 and orders against existing 
contracts up to the maximum ordering threshold or limitation pursuant to 
the provisions of the Public Printing and Documents Act of 1968, as 
amended, and for the acquisition of newspapers, books, maps, and 
periodicals.
    (4) Office of International Conferences. The authority to enter into 
and administer simplified acquisition transactions under FAR Part 13 and 
orders against existing contracts up to the maximum ordering threshold 
or limitation pursuant to section 5, Title I, of the Department of State 
Basic Authorities Act of 1956, as amended.
    (5) Bureau of International Narcotics and Law Enforcement Affairs. 
The authority to enter into and administer simplified acquisition 
transactions under FAR Part 13, orders against existing contracts up to 
the maximum ordering threshold or limitation and personal services 
contracts pursuant to the Foreign Assistance Act of 1961, as amended; 
and, 48 CFR Chapter 7, Agency for International Development Acquisition 
Regulation, including any amendments thereto. These authorities extend 
to any acquisition performed by any Department of State contracting 
activity on behalf of INL.

[[Page 314]]

    (6) Office of Small and Disadvantaged Business Utilization. The 
authority to enter into and administer 8(a) purchase orders and 
contracts as a third party pursuant to the Memorandum of Understanding 
signed with the Small Business Administration.
    (7) Bureau of Administration, Office of Operations. The authority to 
enter into and administer simplified acquisition transactions for 
emergency or contingency operations necessary to protect life or federal 
property. This authority is limited to cases when a contracting officer 
in the Office of Acquisitions Management is unavailable.

[59 FR 66752, Dec. 28, 1994, as amended at 60 FR 39662, Aug. 3, 1995; 64 
FR 43620, Aug. 11, 1999; 69 FR 19330, Apr. 13, 2004; 71 FR 34839, June 
16, 2006; 72 FR 45695, Aug. 15, 2007]

                 PART 602_DEFINITIONS OF WORDS AND TERMS

                        Subpart 602.1_Definitions

Sec.

Sec. 602.101 Definitions.

Sec. 602.101-70 DOSAR definitions.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26162, July 11, 1988, unless otherwise noted.

                        Subpart 602.1_Definitions



Sec. 602.101  Definitions.



Sec. 602.101-70  DOSAR definitions.

    For the purposes of the DOSAR, unless otherwise indicated, the 
following terms have the meanings set forth in this subpart.
    Chief of Mission means the principal officer in charge of a 
diplomatic mission of the United States or of a United States office 
abroad which is designated by the Secretary of State as diplomatic in 
nature, including any individual assigned under section 502(c) of the 
Foreign Service Act of 1980 (Public Law 96-465) to be temporarily in 
charge of such a mission or office.
    Consolidated Receiving Point or CRP; means the contractor under 
contract to a Despatch Agency to receive and prepare items for shipment 
to a post. The CRP receives, records, consolidates, and packs items for 
shipment overseas under the direction of the Despatch Agency.
    Department or DOS means the Department of State, including all of 
its activities wherever located.
    Despatch Agency means the office responsible for the transportation 
of supplies between the U.S. and posts within its specific geographic 
area as assigned by the Office of Logistics Operations. There are six 
Despatch Agencies, one each in Iselin, New Jersey; Baltimore, Maryland; 
Miami, Florida; Seattle, Washington; Brownsville, Texas; and the 
European Logistical Support Office in Antwerp, Belgium.
    Government means the Government of the United States of America 
unless specifically stated otherwise.
    Major system has the same definition as described in FAR 2.101; 
however, the Department of State's dollar threshold as defined in 
paragraph (2) is $30 million. The Under Secretary for Management is the 
head of the agency for the purposes of paragraph (3).
    Overseas post means a ``post'' located outside the United States of 
America.
    Post means a diplomatic or consular mission of the United States of 
America, administered or managed by the DOS.

[53 FR 26163, July 11, 1988, as amended at 59 FR 66753, Dec. 28, 1994; 
60 FR 39662, Aug. 3, 1995; 64 FR 43620, Aug. 11, 1999; 69 FR 19330, Apr. 
13, 2004; 72 FR 45695, Aug. 15, 2007]

 PART 603_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

                        Subpart 603.1_Safeguards

Sec.

Sec. 603.104 Procurement integrity.

Sec. 603.104-4 Disclosure, protection, and marking of contractor bid or 
          proposal information and source selection information.

Sec. 603.104-7 Violations or possible violations.

       Subpart 603.2_Contractor Gratuities to Government Personnel


Sec. 603.204 Treatment of violations.

[[Page 315]]

                      Subpart 603.4_Contingent Fees


Sec. 603.405 Misrepresentations or violations of the Covenant Against 
          Contingent Fees.

Subpart 603.6_Contracts with Government Employees or Organizations Owned 
                          or Controlled by Them


Sec. 603.601 Policy.

Sec. 603.602 Exceptions.

             Subpart 603.7_Voiding and Rescinding Contracts


Sec. 603.704 Policy.

Sec. 603.705 Procedures.

 Subpart 603.8_Limitations on the Payment of Funds To Influence Federal 
                              Transactions


Sec. 603.804 Policy

    Subpart 603.9_Whistleblower Protections for Contractor Employees


Sec. 603.905 Procedures for investigating complaints.

Sec. 603.906 Remedies.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26163, July 11, 1988, unless otherwise noted.

                        Subpart 603.1_Safeguards

    Source: 64 FR 43620, Aug. 11, 1999, unless otherwise noted.



Sec. 603.104  Procurement integrity.



Sec. 603.104-4  Disclosure, protection, and marking of contractor bid or 
   
proposal information and source selection information.

    (a) The following classes of persons may be authorized to receive 
contractor bid or proposal information or source selection information 
by the contracting officer or head of the contracting activity, who is 
the agency head's designee, when such access is necessary to the conduct 
of an acquisition:
    (1) Individuals involved in the selection process, such as the 
Contracting Officer's Representative, technical evaluators, advisors, 
consultants, and the Source Selection Official;
    (2) Clerical personnel directly involved in the acquisition;
    (3) Supervisors in the contracting officer's chain of command;
    (4) Contracting personnel involved in reviewing or approving the 
solicitation, contract, or contract modification;
    (5) Individuals from offices who may be required to perform pre-
award audits, such as DCAA; and,
    (6) Personnel in the following offices: Office of Small and 
Disadvantaged Business Utilization (A/SDBU), Office of the Legal 
Adviser, Office of Legislative Affairs, Office of the Inspector General, 
Office of the Procurement Executive, the Small Business Administration, 
and the Office of Federal Contract Compliance Programs (Department of 
Labor).
    (c) All information which is considered proprietary or source 
selection information shall be marked to prevent its unauthorized 
disclosure before award. This may be performed by marking each page of 
proprietary or source selection material with the statement ``Source 
Selection Information--See FAR 3.104'' or ``Proprietary Information--See 
FAR 3.104'', as applicable. Alternatively, this requirement may be met 
by attaching Forms DS-1926, Proprietary Information (Cover Page), and 
DS-1927, Source Selection Information (Cover Page), to any proprietary 
and source selection information. Individuals responsible for preparing 
derivative documents which reference, cite, or paraphrase proprietary or 
source selection information, are responsible for marking such documents 
as indicated in this paragraph. The required marking or cover page shall 
be included when technical proposals are submitted for evaluation and 
when an audit is requested. After award, the procedures governing the 
Freedom of Information Act and related laws/regulations shall be 
followed regarding release of proprietary or source selection 
information.

[64 FR 43620, Aug. 11, 1999. Redesignated at 69 FR 19330, Apr. 13, 2004]



Sec. 603.104-7  Violations or possible violations.

    (a)(1) The contracting officer shall report any violation or 
possible violation to the head of the contracting activity after he or 
she has reviewed the documentation and has concluded that there is no 
impact on the acquisition.

[[Page 316]]

    (d)(2)(ii)(B) The Procurement Executive is the agency head's 
designee for the purposes of FAR 3.104-7(d)(2)(ii)(B).

[64 FR 43620, Aug. 11, 1999. Redesignated and amended at 69 FR 19330, 
Apr. 13, 2004]

       Subpart 603.2_Contractor Gratuities to Government Personnel



Sec. 603.204  Treatment of violations.

    (a) The Procurement Executive is the agency head's designee for the 
purposes of FAR 3.204.
    (b) Upon completion of the investigation and/or prosecution or with 
the consent of the U.S. Department of Justice, the Assistant Inspector 
General for Investigations shall provide to the Procurement Executive a 
report, together with all pertinent documentation, concerning the 
suspected violation. The Office of the Procurement Executive shall 
provide to the contractor a written notice by certified mail, return 
receipt requested, presenting the findings, and shall establish a 
schedule, including location, for an investigative hearing for the 
purposes described in FAR 3.204(b).

[64 FR 43620, Aug. 11, 1999, as amended at 69 FR 19330, Apr. 13, 2004]

                      Subpart 603.4_Contingent Fees



Sec. 603.405  Misrepresentations or violations of the Covenant Against 

Contingent Fees.

    (a) The contracting officer may request the Office of the Inspector 
General to develop further information if the facts available are deemed 
insufficient to determine whether an actual violation has occurred. The 
contracting officer may also obtain the advice of the Office of the 
Legal Adviser as to the legality and general propriety of any 
information disclosed.

[64 FR 43621, Aug. 11, 1999]

Subpart 603.6_Contracts with Government Employees or Organizations Owned 
                          or Controlled by Them



Sec. 603.601  Policy.

    (a) It is Department policy not to award contracts to Federal 
employees, or businesses substantially owned or controlled by Federal 
employees. This policy also applies to individuals hired under personal 
services agreements and personal services contracts.

[59 FR 66754, Dec. 28, 1994, as amended at 69 FR 19331, Apr. 13, 2004]



Sec. 603.602  Exceptions.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 3.602.

             Subpart 603.7_Voiding and Rescinding Contracts



Sec. 603.704  Policy.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 3.704.

[59 FR 66754, Dec. 28, 1994]



Sec. 603.705  Procedures.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 3.705.

[59 FR 66754, Dec. 28, 1994]

 Subpart 603.8_Limitations on the Payment of Funds To Influence Federal 
                              Transactions



Sec. 603.804  Policy

    (b) The contracting officer shall forward a copy of all contractor 
disclosures furnished pursuant to the clause at FAR 52.203-12 to the 
Office of the Legal Adviser, Employment Law, Senior Ethics Counsel (L/
EMP/Ethics).

[69 FR 19331, Apr. 13, 2004]

    Subpart 603.9_Whistleblower Protections for Contractor Employees

    Source: 64 FR 43621, Aug. 11, 1999, unless otherwise noted.

[[Page 317]]



Sec. 603.905  Procedures for investigating complaints.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 3.905.



Sec. 603.906  Remedies.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 3.906.

                     PART 604_ADMINISTRATIVE MATTERS

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

            Subpart 604.5_Electronic Commerce in Contracting



Sec. 604.502  Policy.

    (b) The Assistant Secretary of State for Administration is the head 
of the agency for the purpose of FAR 4.502(b).
    (1)(i) Materials not in automated format. For solicitations 
containing drawings or other materials that are not in an automated 
format, the contracting officer shall:
    (A) Post as much of the solicitation as possible on the Internet; 
and,
    (B) Make hard copies available for those parts of the solicitation 
that are not in an automated format.
    (ii) Posting solicitations for overseas contracting activities. 
Contracting officers at overseas contracting activities shall post 
competitive local guard solicitations on the Internet using the 
Government-wide point of entry if U.S. firms may be competing. Posting 
of other solicitations is optional.

[69 FR 19331, Apr. 13, 2004, as amended at 72 FR 45695, Aug. 15, 2007]

[[Page 318]]

            SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING

                  PART 605_PUBLICIZING CONTRACT ACTIONS

           Subpart 605.2_Synopsis of Proposed Contract Actions

Sec.

Sec. 605.202 Exceptions.

Sec. 605.202-70 Foreign acquisitions.

Sec. 605.207-70 Acquisitions available from only one responsible source.

                Subpart 605.3_Synopses of Contract Awards


Sec. 605.303 Announcement of contract awards.

                  Subpart 605.4_Release of Information


Sec. 605.403 Requests from members of Congress.

Sec. 605.404 Release of long-range acquisition estimates.

Sec. 605.404-1 Release procedures.

                    Subpart 605.5_Paid Advertisements


Sec. 605.502 Authority.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26164, July 11, 1988, unless otherwise noted.

           Subpart 605.2_Synopsis of Proposed Contract Actions



Sec. 605.202  Exceptions.



Sec. 605.202-70  Foreign acquisitions.

    (a) Policy. In accordance with a Determination and Findings issued 
by the Assistant Secretary of State for Administration, the requirement 
for advance notices in the Governmentwide point of entry (GPE) for the 
Department's foreign acquisitions awarded by overseas contracting 
activities is waived. GPE notices may be published for any acquisition 
where the contracting officer decides that publication would be in the 
Department's best interests.
    (b) Procedures. Contracting officers at overseas contracting 
activities are not required to prepare an individual determination and 
findings to document their decision to waive the GPE notice 
requirements.
    (c) Competition requirements. Nothing in this section waives the 
requirement to obtain competition as required by FAR part 6 and DOSAR 
(48 CFR) part 606. Competition, including the use of written 
solicitation, shall be obtained in all cases to the extent feasible. If 
there are known U.S. firms or firms with U.S. affiliations in local 
residence capable of supplying the required supplies or services, the 
contracting activity shall ensure that those firms are included in the 
source list for the acquisition.
    (d) Policy exclusions. GPE waiver authority does not apply to local 
guard service contracts exceeding $250,000, or any contracts exceeding 
$5 million. Local guard service contracts that exceed $250,000 and other 
contracts that exceed $5 million shall be published in the GPE. Option 
year prices shall be included when computing the applicability of this 
threshold.

[60 FR 39662, Aug. 3, 1995, as amended at 64 FR 43621, Aug. 11, 1999; 69 
FR 19331, Apr. 13, 2004]



Sec. 605.207-70  Acquisitions available from only one responsible 
          source.

    In addition to the information required at FAR 5.207, each notice of 
a proposed acquisition from only one responsible source shall include 
descriptions of the specific qualifications or capabilities required to 
perform the work and the information a potential source must submit.

[53 FR 26164, July 11, 1988, as amended at 69 FR 19331, Apr. 13, 2004]

                Subpart 605.3_Synopses of Contract Awards



Sec. 605.303  Announcement of contract awards.

    (a) Contracting officers shall make information available on awards 
over $10 million to the Bureau of Legislative Affairs, upon request, in 
sufficient time for an announcement by 5:00 p.m. Washington, DC time on 
the day of the award. This requirement applies only

[[Page 319]]

to awards made by domestic contracting activities where performance will 
take place within the United States or its possessions.

[59 FR 66755, Dec. 28, 1994, as amended at 64 FR 43621, Aug. 11, 1999; 
69 FR 19331, Apr. 13, 2004]

                  Subpart 605.4_Release of Information



Sec. 605.403  Requests from members of Congress.

     The Procurement Executive is the agency head for the purposes of 
FAR 5.403.

[59 FR 66755, Dec. 28, 1994, as amended at 72 FR 45695, Aug. 15, 2007]



Sec. 605.404  Release of long-range acquisition estimates.



Sec. 605.404-1  Release procedures.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 5.404-1(a) and the agency head for the purposes of FAR 
5.404-1(b).

[55 FR 5774, Feb. 16, 1990]

                    Subpart 605.5_Paid Advertisements



Sec. 605.502  Authority.

    (a) For paid advertisements in newspapers within the United States, 
the head of the contracting activity is the agency head's designee for 
the purposes of FAR 5.502(a). For acquisitions by overseas posts 
necessitating paid advertisements in newspapers outside the United 
States, the head of the contracting activity is the agency's head's 
designee for the purposes of FAR 5.502(a). When the head of the 
contracting activity is the contracting officer for the acquisition, no 
further approvals are necessary.

[59 FR 66755, Dec. 28, 1994]

                    PART 606_COMPETITION REQUIREMENTS

   Subpart 606.2_Full and Open Competition After Exclusion of Sources

Sec.

Sec. 606.202 Establishing or maintaining alternate sources.

           Subpart 606.3_Other Than Full and Open Competition


Sec. 606.302 Circumstances permitting other than full and open 
          competition.

Sec. 606.302-1 Only one responsible source and no other supplies or 
          services will satisfy agency requirements.

Sec. 606.302-4 International agreement.

Sec. 606.302-6 National security.

Sec. 606.302-7 Public interest.

Sec. 606.303-1 Requirements.

Sec. 606.304 Approval of the justification.

Sec. 606.304-70 Acquisitions by overseas posts.

Sec. 606.370 Department of State standardization program.

                   Subpart 606.5_Competition Advocates


Sec. 606.501 Requirement.

Sec. 606.501-70 Overseas posts.

Sec. 606.570 Solicitation provision.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26165, July 11, 1988, unless otherwise noted.

   Subpart 606.2_Full and Open Competition After Exclusion of Sources



Sec. 606.202  Establishing or maintaining alternate sources.

    The Procurement Executive is the agency head for the purposes of FAR 
6.202.

           Subpart 606.3_Other Than Full and Open Competition



Sec. 606.302  Circumstances permitting other than full and open 

competition.



Sec. 606.302-1  Only one responsible source and no other supplies or 

services will satisfy agency requirements.

    (b)(4) The Procurement Executive is the agency head for the purposes 
of FAR 6.302-1(b)(4).

[59 FR 66755, Dec. 28, 1994]



Sec. 606.302-4  International agreement.

    (b)(2) In accordance with FAR 6.302-4, guard services shall be 
acquired from the host government only when it is the sole available 
source.

[59 FR 66755, Dec. 28, 1994]

[[Page 320]]



Sec. 606.302-6  National security.

    (b) This subsection applies to all acquisitions involving national 
security information, regardless of dollar amount. In no case shall 
information be classified in order to restrict competition. Information 
may be classified only when its authorized disclosure could be expected 
to cause damage to national security.
    (c)(1) The Chief, Controls Division, Office of Intelligence Liaison, 
Directorate for Coordination, Bureau of Intelligence and Research, is 
responsible for reviewing and certifying on any proposed acquisitions 
derived from or funded or administered by intelligence community 
agencies that involve sensitive compartmented information and ensuring 
that the provisions of Executive Order 12958 and FAR 6.302-6 have been 
met. The Office Director, Office of Information Security, Office of 
Security Infrastructure, Bureau of Diplomatic Security (DS/SI/IS) is 
responsible for reviewing and certifying on all other proposed 
acquisitions funded by the Department of State that involve national 
security information and ensuring that the provisions of Executive Order 
12958 and FAR 6.302-6 have been met. When disclosure of the Department's 
needs through full and open competition would compromise national 
security, the Justification for Other than Full and Open Competition 
shall include the following specific information:
    (i) How national security would be compromised if the Department of 
State's (or other agencies') needs were disclosed in the GPE;
    (ii) Why the GPE notice cannot be worded in such a manner that 
national security would not be compromised;
    (iii) Necessity for access to classified information to prepare 
technical and/or cost proposal and level of security clearance required;
    (iv) Necessity for access to classified information to perform the 
proposed contract and level of security clearance required;
    (v) Number and value of contracts that the justification covers; and
    (vi) A statement as follows: ``I hereby certify that the national 
security concerns of the referenced acquisition(s) meet the criteria set 
forth in Executive Order 12958 and FAR 6.302-6''.
    (2) Any acquisition involving national security information shall be 
publicized in the GPE unless disclosure of the agency's needs would 
compromise national security.
    (3) The contracting officer is responsible for soliciting offers 
from as many potential sources as is practicable under the 
circumstances. However, given the sensitivity required for acquisitions 
involving national security information, it is expected that 
requirements offices will work closely with the contracting officer in 
maximizing competition.

[59 FR 66755, Dec. 28, 1994, as amended at 64 FR 43621, Aug. 11, 1999; 
69 FR 19331, Apr. 13, 2004; 72 FR 45695, Aug. 15, 2007]



Sec. 606.302-7  Public interest.

    The authority to approve the determination prescribed in FAR 6.302-
7(c) is reserved to the Secretary of State.



Sec. 606.303-1  Requirements.

    Justifications for contract actions prescribed in FAR 6.303-1(d) 
shall be forwarded by the contracting officer to A/OPE for transmittal 
to the Office of the United States Trade Representative.

[53 FR 26165, July 11, 1988, as amended at 59 FR 66755, Dec. 28, 1994]



Sec. 606.304  Approval of the justification.

    (a)(2) The approval authority for a proposed contract over $550,000 
but not exceeding $11.5 million for domestic contracting activities that 
do not have a competition advocate is the Department Competition 
Advocate.
    (d) The estimated dollar value of all options shall be included in 
determining the approval level of a justification.

[59 FR 66755, Dec. 28, 1994, as amended at 64 FR 43621, Aug. 11, 1999; 
72 FR 45695, Aug. 15, 2007]



Sec. 606.304-70  Acquisitions by overseas posts.

    The Departmental Competition Advocate is the approval authority for 
the purposes of FAR 6.304(a)(3). This authority is not redelegable. Any 
such justification must be transmitted

[[Page 321]]

through the Principal Officer at the overseas post.

[59 FR 66756, Dec. 28, 1994]



Sec. 606.370  Department of State standardization program.

    (a) It is the Department's policy to promote full and open 
competition in all procurement actions. The authority at 41 U.S.C. 
253(c)(1) shall be used with respect to standardization when only 
specified makes and models of equipment will satisfy the Department's 
needs and only one source is available. This policy applies to all 
acquisitions involving standardization, regardless of dollar amount.
    (b) Contracts awarded under the authority at 41 U.S.C. 253(c)(1) 
shall be supported by the written justification described in FAR 6.303. 
The contracting officer, requirements office, procuring activity 
competition advocate, and the Procurement Executive shall approve all 
Justifications for Other than Full and Open Competition that cite 
standardization of technical equipment as justification to restrict 
competition. The Management Officer at each post is the procuring 
activity competition advocate for that post and the requirements office 
at post is the embassy functional office responsible for identifying the 
need to contract.
    (c) Procurement of specified makes and models of technical equipment 
and systems, for which there is only one source of supply, is considered 
other than full and open competition. Such procurements shall be 
supported by an approved Justification for Other than Full and Open 
Competition. The justification shall include the content requirements of 
FAR 6.303-2. The justification shall also address potential cost savings 
in areas such as inventory, operations, training, maintenance, repairs, 
and administrative and management support. Areas of consideration for 
potential cost savings shall be supported by detailed estimates as 
attachments to the justification. Justifications shall specify an 
effective period, which shall bear a reasonable relationship to the life 
of the technical equipment. The effective period shall not exceed six 
years with a review at the end of the first three years. Periodic 
reviews shall be made during the standardization period to determine 
whether the standardization should be continued, revised or canceled.

[59 FR 66756, Dec. 28, 1994, as amended at 69 FR 19331, Apr. 13, 2004]

                   Subpart 606.5_Competition Advocates



Sec. 606.501  Requirement.

    (a) The Procurement Executive is the head of the agency for the 
purposes of FAR 6.501 and designates the Department Competition 
Advocate.
    (b) A contracting activity competition advocate has been designated 
for A/LM/AQM. A/LM/AQM's competition advocate is also designated the 
contracting activity competition advocate for the Regional Procurement 
Support Offices. The Department Competition Advocate is the activity 
competition advocate for all other domestic contracting activities.

[59 FR 66756, Dec. 28, 1994, as amended at 64 FR 43622, Aug. 11, 1999; 
69 FR 19331, Apr. 13, 2004]



Sec. 606.501-70  Overseas posts.

    The Management Officer at each overseas post is the competition 
advocate for that post.

[53 FR 26165, July 11, 1988, as amended at 69 FR 19331, Apr. 13, 2004]



Sec. 606.570  Solicitation provision.

    The contracting officer shall insert the provision at 652.206-70, 
Competition Advocate/Ombudsman, in all solicitations exceeding the 
simplified acquisition threshold.

[64 FR 43622, Aug. 11, 1999]

                      PART 607_ACQUISITION PLANNING

    Authority: 22 U.S.C. 2658; 40 U.S.C. 486(c); 48 CFR subpart 1.3.

                     Subpart 607.1_Acquisition Plans



Sec. 607.103  Agency-head responsibilities.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 7.103.

[55 FR 5774, Feb. 16, 1990]

[[Page 322]]

                   PART 609_CONTRACTOR QUALIFICATIONS

                Subpart 609.2_Qualifications Requirements

Sec.

Sec. 609.202 Policy.

Sec. 609.206 Acquisitions subject to qualification requirements.

Sec. 609.206-1 General.

         Subpart 609.4_Debarment, Suspension, and Ineligibility


Sec. 609.403 Definitions.

Sec. 609.403-70 DOSAR definitions.

Sec. 609.404 Excluded parties list system.

Sec. 609.404-70 Specially Designated Nationals List.

Sec. 609.405 Effect of listing.

Sec. 609.405-1 Continuation of current contracts.

Sec. 609.405-2 Restrictions on subcontracting.

Sec. 609.405-70 Termination action decision.

Sec. 609.406 Debarment.

Sec. 609.406-1 General.

Sec. 609.406-3 Procedures.

Sec. 609.407 Suspension.

Sec. 609.407-1 General.

Sec. 609.407-3 Procedures.

   Subpart 609.5_Organizational and Consultant Conflicts of Interests


Sec. 609.503 Waiver.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26165, July 11, 1988, unless otherwise noted.

                Subpart 609.2_Qualifications Requirements



Sec. 609.202  Policy.

    The authority prescribed in FAR 9.202(a)(1) is delegated, without 
power of redelegation, to the head of the contracting activity.

[53 FR 26165, July 11, 1988, as amended at 59 FR 66756, Dec. 28, 1994]



Sec. 609.206  Acquisitions subject to qualification requirements.



Sec. 609.206-1  General.

    (b) The authority prescribed in FAR 9.206-1(b) is delegated, without 
power of redelegation, to the head of the contracting activity.

[64 FR 43622, Aug. 11, 1999]

         Subpart 609.4_Debarment, Suspension, and Ineligibility



Sec. 609.403  Definitions.

    Debarring official means the Procurement Executive.
    Suspending official means the Procurement Executive.



Sec. 609.403-70  DOSAR definitions.

    Fact-finding official means the chairperson of a three member fact-
finding panel. The panel comprises one representative each from the 
Office of the Legal Adviser, the contracting activity, and the 
requirements office. The representative from the Office of the Legal 
Adviser is the panel chairperson.
    Notice means a written communication sent by certified mail (return 
receipt requested) to the last known address of the party, its 
identified counsel, or its agent. In the case of a business, such notice 
may be sent to any partner, principal officer, director, owner or co-
owner, or joint venturer. If no return receipt is received within 10 
calendar days of mailing, receipt shall then be presumed. This 
definition applies to the notice requirements in FAR 9.406-3 and FAR 
9.407-3.



Sec. 609.404  Excluded parties list system.

    A/OPE shall accomplish the agency responsibilities prescribed in FAR 
9.404(c)(1) through (c)(3). The authority to establish procedures 
prescribed in FAR 9.404(c)(7) is delegated, without power of 
redelegation, to the head of the contracting activity.

[53 FR 26165, July 11, 1988; 53 FR 36461, Sept. 20, 1988, as amended at 
55 FR 5774, Feb. 16, 1990; 59 FR 66756, Dec. 28, 1994; 72 FR 45695, Aug. 
15, 2007]



Sec. 609.404-70  Specially Designated Nationals List.

    Contracting officers shall not award to any of the entities listed 
on the Specially Designated Nationals (SDN) List, available on the 
Department of Treasury's Office of Foreign Assets Control Web site at 
http://www.treas.gov/ofac/. Contracting officers shall consult this list 
prior to award for any dollar amount. This list

[[Page 323]]

may also be accessed through the EPLS Web site at http://www.epls.gov.

[69 FR 19331, Apr. 13, 2004, as amended at 72 FR 45695, Aug. 15, 2007]



Sec. 609.405  Effect of listing.

    (a) The Procurement Executive is the agency head's designee for the 
purposes of FAR 9.405(a).
    (d)(3) The Procurement Executive is the agency head's designee for 
the purposes of FAR 9.405(d)(3).

[59 FR 66756, Dec. 28, 1994, as amended at 60 FR 39662, Aug. 3, 1995; 64 
FR 43622, Aug. 11, 1999; 69 FR 19331, Apr. 13, 2004]



Sec. 609.405-1  Continuation of current contracts.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 9.405-1. The decision whether to terminate a current 
contract shall be made in consideration of the circumstances listed in 
609.405-70.



Sec. 609.405-2  Restrictions on subcontracting.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 9.405-2.



Sec. 609.405-70  Termination action decision.

    (a) Prior to making a decision to terminate, based on the 
consideration listed below, the contracting officer shall have the 
proposed action reviewed and approved by:
    (1) The Office of the Legal Adviser;
    (2) An individual one level above the contracting officer; and
    (3) For overseas posts, A/OPE.
    (b) Termination for default. Termination for default under a 
contract's default clause is appropriate when the circumstances giving 
rise to the debarment or suspension also constitute a default in the 
contractor's performance of that contract. Debarment or suspension of 
the contractor for reasons unrelated to the performance of that contract 
may not support a termination for default.
    (c) Termination for convenience or cancellation. Termination for 
convenience or cancellation under appropriate contract clauses should be 
considered when the contractor presents a significant risk to the 
Government in completing a current contract and when such termination 
for convenience or cancellation is determined to be in the Government's 
best interests. In making this determination, the contracting officer 
should consider such factors as the--
    (1) Seriousness of the cause for debarment or suspension;
    (2) Extent of contract performance;
    (3) Potential costs to the Government;
    (4) Urgency of the requirement and the impact of the delay; and/or
    (5) Availability of other safeguards to protect the Government's 
interests.

[53 FR 26165, July 11, 1988, as amended at 59 FR 66756, Dec. 28, 1994]



Sec. 609.406  Debarment.



Sec. 609.406-1  General.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 9.406-1(c).



Sec. 609.406-3  Procedures.

    (a) Investigation and referral. (1) DOS employees aware of any cause 
that may serve as the basis for debarment shall immediately refer those 
cases through the contracting officer to the debarring official. The 
debarring official shall immediately refer to the Office of the 
Inspector General all reported cases that involve possible criminal or 
fraudulent activities for investigation by that office. The Office of 
the Inspector General shall investigate the matter, as appropriate, and 
provide a copy of its investigation report to the Procurement Executive 
for consideration of debarment action, if and when appropriate. The 
contracting officer shall provide to the Procurement Executive and the 
Office of the Inspector General a copy of his or her intended actions in 
response to the Office of the Inspector General report.
    (2) Referrals for consideration of debarment shall include--
    (i) The cause for debarment (see FAR 9.406-2);
    (ii) A statement of facts;
    (iii) Copies of supporting documentary evidence and a list of all 
necessary or probable witnesses, including addresses and telephone 
numbers, together with a statement concerning

[[Page 324]]

their availability to appear at a fact-finding proceeding and the 
subject matter of their testimony;
    (iv) A list of all contractors involved, either as principals or as 
affiliates, including current or last known home and business addresses 
and ZIP codes;
    (v) A statement of the acquisition history with such contractors;
    (vi) A statement concerning any known pertinent active or potential 
criminal investigation, criminal or civil court proceedings, or 
administrative claim before Boards of Contract Appeals; and
    (vii) A statement from each DOS organizational element affected by 
the debarment action as to the impact of a debarment on DOS programs.
    (b) Decisionmaking process. (1) If the contractor does not respond 
to a debarment notice within 30 calendar days after receipt of the 
notice, the debarring official may put the debarment into effect.
    (2) In response to the debarment notice, if the contractor or its 
representative notifies the debarring official within 30 days after 
receipt of the notice that it wants to present information and arguments 
in person to the debarring official, that official shall chair such a 
meeting within 20 calendar days of receipt of the request, unless the 
contractor requests a longer period of time. The oral presentation shall 
be conducted informally and a transcript need not be made. However, the 
contractor may supplement its oral presentation with written information 
and arguments for inclusion in the administrative record.
    (3) Pursuant to FAR 9.406-3(b)(2), the contractor may request and 
shall be entitled to a hearing before the fact-finding panel. The fact-
finding panel shall conduct the hearing within 20 calendar days of 
receipt of the request, unless the contractor requests a longer period 
of time.
    (4) The debarring official shall convene the fact-finding panel for 
this purpose and shall provide the panel with a copy of all documentary 
evidence on the matter. Upon receipt of such material, the fact-finding 
official shall notify the contractor and schedule a hearing date.
    (5) In addition to the purposes provided in FAR 9.406-3(b)(2), the 
hearing is intended to provide the debarring official with findings of 
fact based on a preponderance of evidence submitted to the fact-finding 
panel and to provide the debarring official with a determination as to 
whether a cause for debarment exists, based on the facts as found.
    (6) The fact-finding panel shall conduct its hearing in accordance 
with rules promulgated by the fact-finding official. The rules shall be 
as informal as is practicable, consistent with FAR 9.406-3(b) The fact-
finding official is responsible for making the transcribed record of the 
hearing, unless the contractor and the fact-finding panel agree to waive 
the requirement for a transcript.
    (7) The fact-finding official shall deliver written findings and the 
transcribed record, if made, to the debarring official within 30 
calendar days after the hearing. The findings shall resolve any facts in 
dispute based on a preponderance of the evidence presented and recommend 
whether a cause for debarment exists.
    (c) Notice of proposal to debar. (1) Upon receipt of a complete 
referral and after consulting with the Office of the Legal Adviser, the 
debarring official shall decide whether to initiate debarment action.
    (2) When a determination is made to initiate action, the debarring 
official shall provide to the contractor and any specifically named 
affiliates written notice in accordance with FAR 9.406-3(c). A copy of 
the notice shall be provided to the DOS officer who made the referral 
and to each DOS organizational elements affected by the determination.
    (3) When a determination is made not to initiate action, the 
debarring official shall so advise the DOS officer who made the 
referral.
    (d) Debarring official's decision. In addition to complying with FAR 
9.406-3(d) and FAR 9.406-3(e), the debarring official shall provide 
single copies of the decision to each DOS organizational element 
affected by the decision

[[Page 325]]

and to the General Services Administration in accordance with 609.404.

[53 FR 26165, July 11, 1988; 53 FR 36461, Sept. 20, 1988, as amended at 
64 FR 43622, Aug. 11, 1999; 69 FR 19331, Apr. 13, 2004]



Sec. 609.407  Suspension.



Sec. 609.407-1  General.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 9.407-1(d).



Sec. 609.407-3  Procedures.

    (a) Investigation and referral. Investigation and referral shall be 
accomplished as provided in 609.406-3(a), except that referrals made to 
the suspending official shall cite causes pertinent to a suspension 
action (see FAR 9.407-2).
    (b) Decisionmaking process. (1) If the contractor does not respond 
to a notice of suspension within 30 calendar days after receipt of the 
notice, the suspending official may proceed with completion of 
investigation.
    (2) The DOS decisionmaking process for a suspension action pursuant 
to FAR 9.407-3(b) follow those established for a debarment action (see 
609.406(b)), except that the contractor may request and shall be 
entitled to a hearing before the fact-finding panel only if permitted 
under FAR 9.407-3(b)(2).
    (c) Notice of suspension. Notice of suspension shall be accomplished 
as provided in 609.406-3(a), except that the suspending official shall 
process the notice in accordance with FAR 9.407-3(c).
    (d) Suspending official's decision. In addition to complying with 
FAR 9.407-3(d), the suspending official shall provide single copies of 
the decision to each DOS organizational element affected by the decision 
and to the General Services Administration in accordance with 609.404.

   Subpart 609.5_Organizational and Consultant Conflicts of Interests



Sec. 609.503  Waiver.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 9.503.

                    PART 611_DESCRIBING AGENCY NEEDS

Sec.

Sec. 611.002 Policy.

Sec. 611.002-70 Metric system implementation.

      Subpart 611.1_Selecting and Developing Requirements Documents


Sec. 611.103 Market acceptance.

                    Subpart 611.5_Liquidated Damages


Sec. 611.501 Policy.

                Subpart 611.6_Priorities and Allocations


Sec. 611.600 Scope of subpart.

Sec. 611.602 General.

Sec. 611.603 Procedures.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 64 FR 43622, Aug. 11, 1999, unless otherwise noted.



Sec. 611.002  Policy.



Sec. 611.002-70  Metric system implementation.

    (a) Policy. The Metric Conversion Act of 1975, as amended by the 
Omnibus Trade and Competitiveness Act of 1988 (15 U.S.C. 205a, et seq.), 
requires Federal agencies to establish implementing guidelines pursuant 
to metric policy to adopt the metric system as the preferred system of 
weights and measurements for United States trade and commerce. This 
section establishes the Department of State's metric conversion 
guidelines.
    (b) Applicability. This section applies to all DOS acquisitions, 
except to the extent that such use is impractical or is likely to cause 
significant inefficiencies or loss of markets to U.S. firms.
    (c) Definitions.
    Dual system means the use of both traditional and metric systems. 
For example, an item is designated, produced and described in inch-pound 
values with soft metric values also shown for information or comparison.
    Hard metric means the use of only standard metric (SI) measurements 
in specifications, standards, supplies and services.
    Hybrid system means the use of both traditional and hard metric 
values in specifications, standards, supplies and services.

[[Page 326]]

    Measurement sensitive means any item having an application or 
meaning depending substantially on some measured quantity. For example, 
measurement sensitive items include product or performance criteria and 
standards binding on others, such as emission levels, size and weight 
limitations, etc.
    Metric system means the International System of Units (Le System 
International d'Unites (SI)) of the International Bureau of Weights and 
Measures.
    Metrication means any act that increases metric system use, 
including metric training and initiation or conversion of measurement 
sensitive processes and systems to the metric system.
    Soft metric means the result of mathematical conversion of inch-
pound measurements to metric equivalents. The physical dimensions, 
however, are not changed.
    Traditional system of weights and measurements means the predominant 
weight and measurement system currently used in the United States, also 
referred to as the ``inch-pound system.'' The traditional system 
includes such commonly used units as inch, foot, yard, mile, pint, 
quart, gallon, bushel, ounce (fluid and avoirdupois), pound, degree 
Fahrenheit, ampere, candela, and second.
    (d) Procedures. (1) DOS contracting activities shall implement the 
metric system in a manner consistent with 15 U.S.C. 205a, et seq.
    (2) All DOS contracting activities shall use the metric system in 
acquisition consistent with security, operations, economic, technical, 
logistical, training and safety requirements.
    (3) The Department shall encourage industry to adopt the metric 
system by acquiring commercially available metric products and services 
that meet the Department's needs whenever practical. Toward this end, 
solicitations for DOS acquisitions shall:
    (i) State all measurement sensitive requirements in metric terms 
whenever possible. Alternatives to hard metric are soft, dual and hybrid 
metric terms. The Metric Handbook for Federal Officials regarding the 
selection of proper metric units and symbols is available from the 
National Technical Information Service; and
    (ii) For contracts expected to exceed $500,000 contracting officers 
shall return to the requirements office all specifications and 
statements of work that are not expressed in some form of metric terms 
unless the requirements office has prepared a justification, for the 
approval of the contracting officer, for the use of non-metric 
specifications or statements of work. The justification shall be in a 
format as prescribed by the head of the contracting activity. Option 
year prices shall be considered when computing the $500,000 threshold.
    (4) Waivers are not required when ordering from Federal Supply 
Schedules.
    (5) Valid justifications for non-metric specifications or statements 
of work include, but are not limited to:
    (i) Existing specifications or standards are in inch-pound units, 
unless conversion of the existing specifications or standards is 
necessary or advantageous to the Government. Unnecessary retrofit of 
existing systems with new metric components should be avoided if the 
total cost of the retrofit, including redesign costs, exceeds $50,000;
    (ii) Metric is not the accepted industry system with respect to a 
business-related activity; however, soft, hybrid, or dual systems may be 
used during the transition to hard metric;
    (iii) The use of metric is impractical or is likely to cause 
significant inefficiencies or loss of markets to U.S. firms.
    (6) The contracting officer shall review and, if acceptable, approve 
the waiver prior to the release of the solicitation. The waiver shall be 
placed in the contract file. If the waiver is not approved, the 
contracting officer shall return it to the requirements office with an 
explanation for the disapproval.
    (7) The in-house operating metric costs shall be identified. 
Identification includes, but is not limited to, the cost of metric aids, 
tools, equipment, training and increased cost to develop metric 
specifications. All contracting activities and requirements offices 
shall maintain a record of any costs and/or savings brought about by 
metric conversion.

[[Page 327]]

    (8) Bulk (loose, unpacked) materials shall be specified and 
purchased in metric or dual units.
    (9) Measuring devices, shop and laboratory equipment shall be 
purchased in metric or dual units.
    (10) Shipping allowances, bills of lading and other shipping 
documents shall be expressed in metric or dual units.

      Subpart 611.1_Selecting and Developing Requirements Documents



Sec. 611.103  Market acceptance.

    (a) The head of the contracting activity is the agency head for the 
purpose of FAR 11.103(a).

                    Subpart 611.5_Liquidated Damages



Sec. 611.501  Policy.

    (d) The head of the contracting activity is the agency head for the 
purpose of FAR 11.501(d).

[64 FR 43622, Aug. 11, 1999. Redesignated and amended at 71 FR 34839, 
June 16, 2006]

                Subpart 611.6_Priorities and Allocations

    Source: 69 FR 19332, Apr. 13, 2004, unless otherwise noted.



Sec. 611.600  Scope of subpart.

    On September 18, 2001, the Department of Commerce (DOC) authorized 
the Department of State to use the Defense Priorities and Allocations 
System (DPAS). This authority expires on October 1, 2006. The Department 
of Defense has approved the Department's Embassy Security Protection 
Program (DOSESPP) as a national defense program eligible for the 
priorities support under the DPAS.



Sec. 611.602  General.

    (c)(1) Authority to use the DPAS is limited to the following 
circumstances:
    (i) The contract or order must be placed with a U.S. firm; and,
    (ii) The contract or order must be in support of the DOSESPP, which 
consists of work involving the security of overseas posts. The DOSESPP 
includes a wide range of elements of both physical and technical 
security, such as:
    (A) New Embassy/Consulate Compound (NEC/NCC) Program. This program 
involves the construction of new secure Embassies, Consulates, and 
related facilities, as well as renovations of newly acquired buildings 
when used as alternatives to the construction of new secure buildings.
    (B) Physical security upgrade. This includes installation of forced 
entry/ballistic resistant (FE/BR) windows and doors, walls/fences, 
active anti-ram barriers, bollards (concrete and steel barriers), and 
related items.
    (C) Forced entry/ballistic resistant (FE/BR) components. This 
includes doors, windows, and related facilities and items that can 
provide the necessary time to protect Government personnel from attack.
    (D) Armored vehicles. This includes passenger vehicles with 
appropriate armoring.
    (E) Entry control and building surveillance equipment. This includes 
walk-through metal detectors, X-ray equipment, surveillance cameras, 
explosive detection equipment, and other features to enhance the 
protection of Government personnel and facilities.
    (2) DOC has assigned the following priority rating to DOSESPP 
contracts or orders: DO-H8.



Sec. 611.603  Procedures.

    (f) Department of State contracting officers are authorized to sign 
DO-H8 rated contracts or orders. It is the responsibility of the 
requirements office to determine which contracts or orders should be 
rated. All contracts with U.S. firms under the DOSESPP will not 
necessarily need to be assigned a priority rating.
    (g) The contracting officer should place a DO-H8 rating on any 
contract or order if there is any doubt as to whether a contractor doing 
work for Embassy security protection will be able to deliver on time. If 
an unrated contract or order is not completed on time, the contracting 
officer may modify the contract or order to add the rating; however, the 
rating shall only be effective for the newly established delivery date, 
not the original delivery date.

[[Page 328]]

    (1) DOC can provide special assistance to implement the DPAS program 
in specific cases. For example, the Department may request a higher 
priority rating, or request that DOC issue a written directive to a 
contractor that is not complying with the DPAS regulations. In addition, 
although the DPAS program normally applies only to U.S. firms, if the 
Department has a prime contract with a foreign firm that will be 
awarding subcontracts with U.S. firms, the Department may request from 
DOC authorization to place a rating on the prime contract.
    (2) Contracting officers or requirements offices who wish to request 
special assistance from DOC must complete DOC Form BXA-999, Request for 
Special Priorities Assistance, and submit it to A/OPE, which will 
arrange for submission of the request to DOC.

                PART 612_ACQUISITION OF COMMERCIAL ITEMS

   Subpart 612.3_Solicitation Provisions and Contract Clauses for the 
                     Acquisition of Commercial Items



Sec. 612.302  Tailoring of provisions and clauses for the acquisition of 

commercial items.

    (c) The head of the contracting activity shall approve any request 
for a waiver to tailor a clause or otherwise include any additional 
terms or conditions in a solicitation or contract in a manner that is 
inconsistent with customary commercial practice.

[69 FR 19332, Apr. 13, 2004]

[[Page 329]]

           SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES

               PART 613_SIMPLIFIED ACQUISITION PROCEDURES

     Subpart 613.2_Actions At or Below the Micro-Purchase Threshold


Sec. 613.201 General.

              Subpart 613.3_Simplified Acquisition Methods

Sec.

Sec. 613.303 Blanket purchase agreements (BPAs).

Sec. 613.303-5 Purchases under BPAs.

Sec. 613.305 Imprest funds and third party drafts.

Sec. 613.305-3 Conditions for use.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 64 FR 43623, Aug. 11, 1999, unless otherwise noted.

     Subpart 613.2_Actions At or Below the Micro-Purchase Threshold



Sec. 613.201  General.

    (g)(1) The procurement Executive is the agency head's designee for 
the purpose of FAR 13.201(g)(1).

[72 FR 45695, Aug. 15, 2007]

              Subpart 613.3_Simplified Acquisition Methods



Sec. 613.303  Blanket purchase agreements (BPAs).



Sec. 613.303-5  Purchases under BPAs.

    (b) Individual purchases under BPAs for commercial items may exceed 
the simplified acquisition threshold; however, the higher threshold must 
be consistent with the requirements of FAR 13.303-5(b)(1) and (2).
    (c) In accordance with FAR 13.303-5(c), BPAs shall be awarded to 
small businesses to the maximum extent practicable.

[64 FR 43623, Aug. 11, 1999, as amended at 69 FR 19332, Apr. 13, 2004]



Sec. 613.305  Imprest funds and third party drafts.



Sec. 613.305-3  Conditions for use.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 13.305-3(a).

                         PART 614_SEALED BIDDING

                   Subpart 614.2_Solicitation of Bids

Sec.

Sec. 614.201 Preparation of Invitation for Bids (IFB).

Sec. 614.201-70 Use of English language.

           Subpart 614.4_Opening of Bids and Award of Contract


Sec. 614.402 Opening of bids.

Sec. 614.402-1 Unclassified bids.

Sec. 614.402-70 Waiver of public opening of bids.

Sec. 614.404 Rejection of bids.

Sec. 614.404-1 Cancellation of invitations after opening.

Sec. 614.407 Mistakes in bids.

Sec. 614.407-3 Other mistakes disclosed before award.

Sec. 614.407-4 Mistakes after award.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26168, July 11, 1988, unless otherwise noted.

                   Subpart 614.2_Solicitation of Bids

    Source: 64 FR 43623, Aug. 11, 1999, unless otherwise noted.



Sec. 614.201  Preparation of Invitation for Bids (IFB).



Sec. 614.201-70  Use of English language.

    Use of English language solicitations and contracts is mandatory 
unless a deviation has been approved by the Procurement Executive in 
accordance with 601.470. If any part of a contract is not written in the 
English language, the contracting officer shall attach an accurate 
English language translation of such part to the original and each copy 
of the contract, unless the contracting officer determines such action 
is infeasible.

[[Page 330]]

           Subpart 614.4_Opening of Bids and Award of Contract



Sec. 614.402  Opening of bids.



Sec. 614.402-1  Unclassified bids.

    After the unclassified bids have been opened pursuant to FAR 14.402-
1, the bid opening officer shall announce that the opening of bids has 
been completed and that all bidders will be notified as soon as possible 
regarding the award.



Sec. 614.402-70  Waiver of public opening of bids.

    Overseas posts may request waiver of the public opening of bids if 
that activity is inconsistent with local law or legal practice, or with 
post security. For that purpose, the Procurement Executive must approve 
a deviation in accordance with 601.470.



Sec. 614.404  Rejection of bids.



Sec. 614.404-1  Cancellation of invitations after opening.

    The authority to make the determination prescribed in FAR 14.404-
1(c) is delegated, without power of redelegation, to the head of the 
contracting activity. The head of the contracting activity shall obtain 
the concurrence of the Office of the Legal Adviser before making a 
determination pursuant to this subsection.
    (f) The head of the contracting activity is the agency head for the 
purpose of FAR 14.404-1(f). This authority is not redelegable.

[53 FR 26168, July 11, 1988, as amended at 59 FR 66758, Dec. 28, 1994; 
64 FR 43623, Aug. 11, 1999]



Sec. 614.407  Mistakes in bids.



Sec. 614.407-3  Other mistakes disclosed before award.

    The authority to make the determinations prescribed in FAR 14.407 is 
delegated, without power of redelegation, to the head of the contracting 
activity. In conformance with FAR 14.407-3(f), the head of the 
contracting activity shall obtain the concurrence of the Office of the 
Legal Adviser before making any determinations pursuant to this 
subsection.

[53 FR 26168, July 11, 1988. Redesignated and amended at 64 FR 43623, 
Aug. 11, 1999]



Sec. 614.407-4  Mistakes after award.

    The authority to make all determinations prescribed in FAR 14.407-4 
is delegated, without power of redelegation, to the head of the 
contracting activity. In conformance with FAR 14.407-4(d), the head of 
the contracting activity shall consult with the Office of the Legal 
Adviser before making any determinations pursuant to this subsection.

[53 FR 26168, July 11, 1988. Redesignated and amended at 64 FR 43623, 
Aug. 11, 1999]

                   PART 615_CONTRACTING BY NEGOTIATION

   Subpart 615.2_Solicitation and Receipt of Proposals and Information

Sec.

Sec. 615.204 Contract format.

Sec. 615.205 Issuing solicitations.

Sec. 615.205-70 Use of English language.

                     Subpart 615.3_Source Selection


Sec. 615.303 Responsibilities.

                   Subpart 615.6_Unsolicited Proposals


Sec. 615.604 Agency points of contact.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 64 FR 43623, Aug. 11, 1999, unless otherwise noted.

   Subpart 615.2_Solicitation and Receipt of Proposals and Information



Sec. 615.204  Contract format.

    (e) The Procurement Executive is the agency head's designee for the 
purposes of FAR 15.204(e).



Sec. 615.205  Issuing solicitations.

    (a) Contracting officers shall release copies of solicitation 
mailing lists in accordance with FAR 14.205-5(a). However, the list of 
those firms which actually submit proposals is not releasable. Requests 
for information other than

[[Page 331]]

solicitation mailing lists shall be handled under the Freedom of 
Information Act.



Sec. 615.205-70  Use of English language.

    The requirements of DOSAR 614.201-70 also apply when contracting by 
negotiation.

                     Subpart 615.3_Source Selection



Sec. 615.303  Responsibilities.

    (a) The Procurement Executive is the agency head for the purposes of 
FAR 15.303(a).

                   Subpart 615.6_Unsolicited Proposals



Sec. 615.604  Agency points of contact.

    (a)(4) The contact points for unsolicited proposals are the heads of 
the contracting activities.

                       PART 616_TYPES OF CONTRACTS

Sec.

Sec. 616.000 Scope of part.

                   Subpart 616.2_Fixed-Price Contracts


Sec. 616.203 Fixed-Price contracts with economic price adjustment.

Sec. 616.203-4 Contract clauses.

Sec. 616.207 Firm-fixed-price, level-of-effort term contracts.

Sec. 616.207-3 Limitations.

               Subpart 616.5_Indefinite-Delivery Contracts


Sec. 616.505 Ordering.

Sec. 616.506 Solicitation provisions and contract clauses.

Sec. 616.506-70 DOSAR contract clause.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26169, July 11, 1988, unless otherwise noted.



Sec. 616.000  Scope of part.

    The contracting officer may use any of the contract types described 
in FAR part 16 for acquisitions made under simplified acquisition 
procedures. The contracting officer shall document his/her decision to 
use a contract type in accordance with the requirements of FAR part 16.

[60 FR 39963, Aug. 3, 1995]

                   Subpart 616.2_Fixed-Price Contracts



Sec. 616.203  Fixed-Price contracts with economic price adjustment.



Sec. 616.203-4  Contract clauses.

    Contracting officers at domestic contracting activities may use an 
economic price adjustment clause based on cost indexes of labor or 
material in accordance with the circumstances listed in FAR 16.203-4(d) 
and after obtaining the approval of the head of the contracting 
activity. Overseas posts may use the clause at 652.216-71, Price 
Adjustment, when procuring continuing services (e.g., guard, janitorial, 
building maintenance, and gardening). Posts shall obtain A/OPE approval 
for any price adjustment clause that differs from the clause at 652.216-
71.

[53 FR 26169, July 11, 1988, as amended at 59 FR 66759, Dec. 28, 1994]



Sec. 616.207  Firm-fixed-price, level-of-effort term contracts.



Sec. 616.207-3  Limitations.

    The head of the contracting activity is the chief of the contracting 
office for the purposes of FAR 16.207-3.

               Subpart 616.5_Indefinite-Delivery Contracts



Sec. 616.505  Ordering.

    (b)(5) The Departmental Competition Advocate is designated the task 
and delivery order contract ombudsman.

[64 FR 43624, Aug. 11, 1999, as amended at 69 FR 19332, Apr. 13, 2004]



Sec. 616.506  Solicitation provisions and contract clauses.



Sec. 616.506-70  DOSAR contract clause.

    The contracting officer shall insert the clause at 652.216-70, 
Ordering--Indefinite-Delivery Contract, whenever the clause at FAR 
52.216-20, Definite Quantity, or the clause at FAR 52.216-21, 
Requirements, or the clause at FAR 52.216-22, Indefinite Quantity, is 
used.

[53 FR 26169, July 11, 1988. Redesignated at 64 FR 43624, Aug. 11, 1999]

[[Page 332]]

                  PART 617_SPECIAL CONTRACTING METHODS

                   Subpart 617.1_Multiyear Contracting

Sec.

Sec. 617.104 General.

Sec. 617.105 Policy.

Sec. 617.105-1 Uses.

Sec. 617.108 Congressional notification.

                          Subpart 617.2_Options


Sec. 617.201 Definitions.

Sec. 617.201-70 DOSAR Definitions.

Sec. 617.204 Contracts.

      Subpart 617.5_Interagency Acquisitions Under the Economy Act


Sec. 617.503 Determination and findings requirements.

Sec. 617.504-70 Ordering procedures.

            Subpart 617.6_Management and Operating Contracts


Sec. 617.602 Policy.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26169, July 11, 1988, unless otherwise noted.

                   Subpart 617.1_Multiyear Contracting

    Source: 64 FR 43624, Aug. 11, 1999, unless otherwise noted.



Sec. 617.104  General.

    (b) The Procurement Executive is the agency head for the purpose of 
FAR 17.104(b).



Sec. 617.105  Policy.



Sec. 617.105-1  Uses.

    (d) Every multiyear contract shall comply with FAR 17.104(c), unless 
an exception is approved through the budget process in coordination with 
the cognizant financial management office/comptroller.



Sec. 617.108  Congressional notification.

    (a) The Procurement Executive is the agency head for the purposes of 
FAR 17.108(a).

                          Subpart 617.2_Options



Sec. 617.201  Definitions.



Sec. 617.201-70  DOSAR Definitions.

    Evaluated option means an option that is evaluated for award 
purposes by adding the total price for the option(s) to the total price 
for the basic requirement.
    Price option means an option where the amount for the option is 
specified in or is reasonably determinable from the terms of the basic 
contract, as described in FAR 17.207(f) (1) through (5).
    Unevaluated option means an option that is not included in the 
evaluation for award purposes.
    Unpriced option means an option where the prices for the option 
quantities or performance periods are not specified in the contract at 
the time of award and the option prices are negotiated at the time the 
option is exercised.

[53 FR 26169, July 11, 1988, as amended at 59 FR 66759, Dec. 28, 1994]



Sec. 617.204  Contracts.

    (e) The Procurement Executive shall approve any solicitations or 
contracts which exceed the five (5) year maximum length for supplies or 
services. The Procurement Executive may delegate this approval authority 
to individuals within the Office of the Procurement Executive.

[59 FR 66759, Dec. 28, 1994, as amended at 69 FR 19332, Apr. 13, 2004]

      Subpart 617.5_Interagency Acquisitions Under the Economy Act



Sec. 617.503  Determination and findings requirements.

    The authority to make the determination prescribed in FAR 17.503 is 
delegated to the head of the contracting activity.

[64 FR 43624, Aug. 11, 1999]



Sec. 617.504-70  Ordering procedures.

    (a) Department deputy assistant secretaries and Bureau Executive 
Directors or their equivalents are authorized

[[Page 333]]

to execute Economy Act IAAs. Department contracting officers also are 
authorized to execute Economy Act IAAs, as prescribed in FAR 17.504(a).
    (b) Department of State form DS-1921, Award/Modification of 
Interagency Acquisition Agreement, shall be used for all Economy Act 
IAAs where the Department is the requesting agency. It shall also be 
used for Economy Act IAAs where the Department is the servicing agency 
if the requesting agency does not have a similar form that provides the 
same information.

[59 FR 66759, Dec. 28, 1994, as amended at 64 FR 43624, Aug. 11, 1999; 
69 FR 19332, Apr. 13, 2004]

            Subpart 617.6_Management and Operating Contracts



Sec. 617.602  Policy.

    The Assistant Secretary for Administration is the agency head for 
the purposes of FAR 17.602.

[[Page 334]]

                   SUBCHAPTER D_SOCIOECONOMIC PROGRAMS

                    PART 619_SMALL BUSINESS PROGRAMS

Sec.

Sec. 619.000 Scope of part.

                         Subpart 619.2_Policies


Sec. 619.201 General policy.

Sec. 619.202 Specific policies.

Sec. 619.202-70 The Department of State Mentor-Prot[eacute]g[eacute] 
          Program.

    Subpart 619.4_Cooperation with the Small Business Administration


Sec. 619.402 Small Business Administration procurement center 
          representatives.

Sec. 619.402-70 DOS designee.

               Subpart 619.5_Set-Asides for Small Business


Sec. 619.501 General.

Sec. 619.505 Rejecting Small Business Administration recommendations.

Sec. 619.506 Withdrawing or modifying set asides.

     Subpart 619.6_Certificates of Competency and Determinations of 
                               Eligibility


Sec. 619.602 Procedures.

Sec. 619.602-1 Referral.

         Subpart 619.7_The Small Business Subcontracting Program


Sec. 619.705 Responsibilities of the contracting officer under the 
          subcontracting assistance program.

Sec. 619.705-1 General support of the program.

Sec. 619.705-3 Preparing the solicitation.

Sec. 619.705-4 Reviewing the subcontracting plan.

Sec. 619.705-6 Postaward responsibilities of the contracting officer.

Sec. 619.705-6-70 Reporting responsibilities.

Sec. 619.708-70 Solicitation provisions and contract clauses.

 Subpart 619.8_Contracting with the Small Business Administration (The 
                              8(a) Program)


Sec. 619.800 General.

Sec. 619.803 Selecting acquisitions for the 8(a) program.

Sec. 619.803-70 Responsibilities of the Office of Small and 
          Disadvantaged Business Utilization (A/SDBU).

Sec. 619.803-71 Simplified procedures for 8(a) acquisitions under MOUs.

Sec. 619.804 Evaluation, offering, and acceptance.

Sec. 619.804-2 Agency offering.

Sec. 619.804-3 SBA acceptance.

Sec. 619.804-3-70 SBA acceptance under MOUs for acquisitions exceeding 
          $100,000.

Sec. 619.805 Competitive 8(a).

Sec. 619.805-2 Procedures.

Sec. 619.806 Pricing the 8(a) contract.

Sec. 619.808 Contract negotiation.

Sec. 619.808-1 Sole source.

Sec. 619.810 SBA appeals.

Sec. 619.811 Preparing the contracts.

Sec. 619.811-1 Sole source.

Sec. 619.811-2 Competitive.

Sec. 619.811-3 Contract clauses.

Sec. 619.812 Contract administration.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26170, July 11, 1988, unless otherwise noted.



Sec. 619.000  Scope of part.

    (b) It is the Department's policy to provide maximum opportunities 
for U.S. small businesses to participate in the acquisition process. DOS 
contracts that are awarded domestically for performance overseas shall 
be subject to the Small Business Act as a matter of policy. Contracts 
that are both awarded and performed overseas should comply on a 
voluntary basis.

[71 FR 34839, June 16, 2006]

                         Subpart 619.2_Policies



Sec. 619.201  General policy.

    (a) The Operations Director, Office of Small and Disadvantaged 
Business Utilization (A/SDBU), is responsible for performing all 
functions and duties prescribed in FAR 19.201(c) and (d).
    (b) In addition to the requirements of FAR 19.201(b), each head of 
the contracting activity, or designee, is responsible for establishing 
in coordination with the A/SDBU Operations Director annual goals for the 
DOS small business program.
    (c) [Reserved]
    (d) Pursuant to FAR 19.201(d), each Small and Disadvantaged Business 
Utilization Specialist (SDBUS) is responsible for--

[[Page 335]]

    (1) Maintaining a program to locate capable small business, small 
disadvantaged business, women-owned small business, HUBZone small 
business, veteran-owned small business, and service-disabled veteran-
owned small business sources to fulfill DOS acquisition requirements;
    (2) Coordinating inquiries and requests for advice from small 
business, small disadvantaged business, women-owned small business, 
HUBZone small business, veteran-owned small business, and service-
disabled veteran-owned small business concerns on DOS contracting and 
subcontracting opportunities and other acquisition matters;
    (3) Advising contracting activities on new or revised small business 
policies, regulations, procedures, and other related information;
    (4) Assuring that small business, small disadvantaged business, 
women-owned small business, HUBZone small business, veteran-owned small 
business, and service-disabled veteran-owned small business concerns are 
provided adequate specifications or drawings by initiating, in writing, 
with appropriate technical and contracting personnel to ensure that all 
necessary specifications or drawings for current and future 
acquisitions, as appropriate, are available;
    (5) Reviewing all proposed acquisitions in excess of the simplified 
acquisition threshold, including commercial items using the simplified 
acquisition procedures of FAR Subpart 13.5, and task and delivery orders 
under multiple award contracts exceeding $2 million, to assure that 
small business, small disadvantaged business, women-owned small 
business, HUBZone small business, veteran-owned small business, and 
service-disabled veteran-owned small business concerns will be afforded 
an equitable opportunity to compete and, as appropriate, initiating 
recommendations for small business, 8(a), or HUBZone set-asides. This 
includes proposed contract modifications for new or additional 
requirements that do not fall within the original scope of the contract 
and which exceed the simplified acquisition limitation. This does not 
include the exercising of contract options;
    (6) Assuring that contract financing available under existing 
regulations is offered when appropriate and that requests by small 
business concerns for such financing are not treated as a handicap in 
the award of contracts;
    (7) Providing assistance to the contracting officer in making 
determinations concerning responsibility of prospective contractors 
whenever small business concerns are involved;
    (8) Participating in the evaluation of a prime contractor's small, 
small disadvantaged, woman-owned small, HUBZone small, veteran-owned 
small, and service-disabled veteran-owned small business subcontracting 
plans;
    (9) Assuring that the participation of small business, small 
disadvantaged business, women-owned small business, HUBZone small 
business, veteran-owned small business, and service-disabled veteran-
owned small business concerns is accurately reported;
    (10) Attending, as appropriate, debriefings to unsuccessful small 
business, small disadvantaged business, women-owned small business, 
HUBZone small business, veteran-owned small business, and service-
disabled veteran-owned small business concerns to assist those firms in 
understanding requirements for responsiveness and responsibility so that 
the firm may be able to qualify for future awards;
    (11) Making available to SBA copies of solicitations when so 
requested;
    (12) When a bid or offer from a small business, small disadvantaged 
business, women-owned small business, HUBZone small business, veteran-
owned small business, and service-disabled veteran-owned small business 
has been rejected for non-responsiveness or non-responsibility, upon 
request, aid, counsel, and assist that firm in understanding 
requirements for responsiveness and responsibility so that the firm may 
be able to qualify for future awards;
    (13) Participating in Government-industry conferences to assist 
small business concerns, including Business Opportunity/Federal 
Acquisition Conferences, Minority Business Enterprise Acquisition 
Seminars and Business Opportunity Committee meetings;

[[Page 336]]

    (14) Maintaining a list of supplies and services that have been 
placed as repetitive small business set-asides;
    (15) Participating in the development, implementation, and review of 
automated source systems to assure that the interests of small business 
concerns are included;
    (16) Advising potential sources how they can obtain information 
about competitive acquisitions;
    (17) Providing small business, small disadvantaged business, women-
owned small business, HUBZone small business, veteran-owned small 
business, and service-disabled veteran-owned small business concerns 
information regarding assistance available from Federal agencies such as 
the Small Business Administration, Minority Business Development Agency, 
Bureau of Indian Affairs, Economic Development Administration, National 
Science Foundation, Department of Labor and others, including State 
agencies and trade associations; and
    (18) Participating in interagency programs relating to small 
business matters as authorized by the A/SDBU Operations Director.
    (f)(1) The Procurement Executive is the agency designee for the 
purposes of FAR 19.201(f)(1). The written determination shall be 
forwarded to the Procurement Executive through the A/SDBU Operations 
Director.

[69 FR 19333, Apr. 13, 2004, as amended at 72 FR 45695, Aug. 15, 2007]



Sec. 619.202  Specific policies.



Sec. 619.202-70  The Department of State Mentor-Prot[eacute]g[eacute] 

Program.

    (a) Purpose. The Mentor-Prot[eacute]g[eacute] Program is designed to 
motivate and encourage firms to assist small businesses with business 
development, including small disadvantaged businesses, women-owned small 
businesses, HUBZone small businesses, veteran-owned small businesses and 
service-disabled veteran-owned small businesses. The program is also 
designed to improve the performance of DOS contracts and subcontracts, 
foster the establishment of long-term business relationships between 
small businesses and prime contractors, and increase the overall number 
of small businesses that receive DOS contract and subcontract awards. 
The program is limited to non-commercial item acquisitions.
    (b) Definitions. The definitions of small business (SB), HUBZone 
small business concern (HUBZone), small disadvantaged business (SDB), 
women-owned small business (WOSB), veteran-owned small business (VOSB), 
and service-disabled veteran-owned small business (SDVOSB) are the same 
as found in FAR 2.101.
    Mentor means a prime contractor that elects to promote and develop 
small business subcontractors by providing developmental assistance 
designed to enhance the business success of the prot[eacute]g[eacute].
    Prot[eacute]g[eacute] means a small business, HUBZone small 
business, small disadvantaged business, women-owned small business, 
veteran-owned small business, or service-disabled veteran-owned small 
business that is the recipient of developmental assistance pursuant to a 
mentor-prot[eacute]g[eacute] program.
    (c) Non-affiliation. For purposes of the Small Business Act, a 
prot[eacute]g[eacute] firm is not considered an affiliate of a mentor 
firm solely because the prot[eacute]g[eacute] firm is receiving 
developmental assistance from the mentor firm under the program.
    (d) General policy. (1) Eligible business prime contractors not 
included on the ``List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs'' that are approved as mentor firms may enter 
into agreements with eligible prot[eacute]g[eacute].
    (2) A firm's status as a prot[eacute]g[eacute] under a DOS contract 
shall not have an effect on the firm's ability to seek other prime 
contracts or subcontracts.
    (e) Incentives for prime contractor participation. (1) Under the 
Small Business Act (15 U.S.C. 637(d)(4)(E)), DOS is authorized to 
provide appropriate incentives to encourage subcontracting opportunities 
for small businesses consistent with the efficient and economical 
performance of the contract. This authority is limited to negotiated 
acquisitions.
    (2) Before awarding a contract that requires a subcontracting plan, 
the existence of a mentor-prot[eacute]g[eacute] arrangement, and 
performance, if any, under

[[Page 337]]

an existing arrangement, may be considered by the contracting officer 
in:
    (i) Evaluating the quality of a proposed subcontracting plan under 
FAR 19.704-5; and,
    (ii) Assessing the prime contractor's compliance with the 
subcontracting plans submitted in previous contracts as a factor in 
determining contractor responsibility under FAR 19.705-5(a)(1).
    (3) A non-monetary award may be presented annually (or as often as 
appropriate) to the mentoring firm providing the most effective 
developmental support of a prot[eacute]g[eacute]. The Mentor-
Prot[eacute]g[eacute] Program Manager will recommend an award winner to 
the Operations Director, A/SDBU.
    (f) Measurement of program success. The success of the DOS Mentor-
Prot[eacute]g[eacute] Program will be measured by:
    (1) The increase in the number and dollar value of contracts awarded 
to prot[eacute]g[eacute] firms under DOS contracts from the date the 
prot[eacute]g[eacute] enters the program;
    (2) The increase in the number and dollar value of contracts and 
subcontracts awarded to the prot[eacute]g[eacute] under other Federal 
agencies and commercial contracts; and,
    (3) The developmental assistance provided by the mentor firm and the 
resulting increase in the technical, managerial, financial or other 
capabilities of the prot[eacute]g[eacute] firm, as reported by the 
prot[eacute]g[eacute].
    (g) Eligibility of mentor firms. A mentor firm:
    (1) May be either a large or small business;
    (2) Must be eligible for award of U.S. Government contracts;
    (3) Must be able to provide developmental assistance that will 
enhance the ability of prot[eacute]g[eacute] to perform as 
subcontractors; and,
    (4) Will be encouraged to enter into arrangements with 
prot[eacute]g[eacute] and firms with whom they have established business 
relationships.
    (h) Eligibility of prot[eacute]g[eacute] firms. (1) A 
prot[eacute]g[eacute] firm must be:
    (i) A SB, HUBZone, SDB, WOSB, VOSB, or SDVOSB as those terms are 
defined in FAR 2.101;
    (ii) Small in the NAICS code for the services or supplies to be 
provided by the prot[eacute]g[eacute] to the mentor; and,
    (iii) Eligible for award of U.S. Government contracts.
    (2) Except for SDB and HUBZone firms, a prot[eacute]g[eacute] firm 
may self-certify to a mentor firm that it meets the requirements set 
forth in paragraph (h)(1) of this subsection. Mentors may rely in good 
faith on written representations by potential prot[eacute]g[eacute] that 
they meet the specified eligibility requirements. SDB status eligibility 
and documentation requirements are determined by FAR 19.304. HUBZone 
status eligibility and documentation requirements are determined by FAR 
19.1303.
    (3) Prot[eacute]g[eacute] may have multiple mentors. 
prot[eacute]g[eacute] participating in mentor-prot[eacute]g[eacute] 
programs in addition to DOS's program should maintain a system for 
preparing separate reports of mentoring activity for each agency's 
program.
    (i) Selection of prot[eacute]g[eacute] firms. (1) Mentor firms are 
solely responsible for selecting prot[eacute]g[eacute] firms. The mentor 
is encouraged to identify and select a broad base of 
prot[eacute]g[eacute] firms whose core competencies support DOS's 
mission.
    (2) Mentors may have multiple prot[eacute]g[eacute].
    (3) The selection of prot[eacute]g[eacute] firms by mentor firms may 
not be protested, except that any protest regarding the size or 
eligibility status of an entity selected by a mentor shall be handled in 
accordance with FAR and SBA regulations.
    (j) Application and agreement process for mentor-
prot[eacute]g[eacute] teams to participate in the program. (1) Firms 
interested in becoming a mentor firm shall apply in writing to A/SDBU. 
The application (Form DS-4053, Department of State Mentor-
Prot[eacute]g[eacute] Program Application), shall be evaluated by the 
nature and extent of technical and managerial support proposed as well 
as the extent of financial assistance in the form of equity investment, 
loans, joint-venture support, and traditional subcontracting support 
proposed.
    (2) A proposed mentor shall submit the application form and 
associated information to A/SDBU.
    (k) A/SDBU review of application. (1) A/SDBU shall review the 
information to ensure the mentor and prot[eacute]g[eacute] are eligible 
and the information provided is complete. A/SDBU shall consult with

[[Page 338]]

the contracting officer on the adequacy of the proposed mentor-
prot[eacute]g[eacute] arrangement, and its review shall be complete no 
later than 30 calendar days after receipt of the application by A/SDBU.
    (2) Upon completion of the review, A/SDBU will advise the mentor if 
its application is acceptable. The mentor may then implement the 
developmental assistance program in accordance with the approved 
agreement.
    (3) The agreement defines the relationship between the mentor and 
prot[eacute]g[eacute] firms only. The agreement itself does not create 
any privity of contract between the mentor or prot[eacute]g[eacute] and 
the DOS.
    (l) Developmental assistance. The forms of developmental assistance 
a mentor can provide to a prot[eacute]g[eacute] include:
    (1) Management guidance relating to:
    (i) Financial management;
    (ii) Organizational management;
    (iii) Overall business management/planning;
    (iv) Business development; and,
    (v) Technical assistance.
    (2) Loans;
    (3) Rent-free use of facilities and/or equipment;
    (4) Property;
    (5) Temporary assignment of personnel to prot[eacute]g[eacute] for 
purpose of training; and,
    (6) Any other types of permissible, mutually beneficial assistance.
    (m) Obligation. (1) A mentor or prot[eacute]g[eacute] firm may 
voluntarily withdraw from the program. However, in no event shall such 
withdrawal impact the program mission and contractual requirements under 
the prime contract.
    (2) Mentor and prot[eacute]g[eacute] firms shall submit to A/SDBU 
annual reports on program progress of the mentor-prot[eacute]g[eacute] 
agreements. Large business mentors may submit these reports as part of 
their SB, HUBZone, SDB, WOSB, VOSB, and SDVOSB plan submission in 
accordance with the due date on the SF-295. DOS shall consider the 
following in evaluating these reports:
    (i) Specific actions taken by the contractor, during the evaluation 
period, to increase the participation of prot[eacute]g[eacute]s as 
suppliers to the U.S. Government and to commercial entities;
    (ii) Specific actions taken by the mentor, during the evaluation 
period, to develop the technical and corporate administrative expertise 
of a prot[eacute]g[eacute] as defined in the agreement;
    (iii) To what extent the prot[eacute]g[eacute] has met the 
developmental objectives in the agreement; and,
    (iv) To what extent the mentor firm's participation in the Mentor-
Prot[eacute]g[eacute] Program resulted in the prot[eacute]g[eacute] 
receiving contract(s) and subcontract(s) from private firms and agencies 
other than the DOS.
    (3) The DOS A/SDBU shall submit the annual reports to the cognizant 
contracting officer regarding participating prime contractor(s) 
performance in the program.
    (4) Mentor and prot[eacute]g[eacute] firms shall submit an 
evaluation to the A/SDBU at the conclusion of the mutually agreed upon 
program period, the conclusion of the contract, or the voluntary 
withdrawal by either party from the program, whichever comes first.
    (n) Internal controls. (1) A/SDBU shall oversee the program and 
shall work with the cognizant contracting officer to achieve program 
objectives.
    (2) DOS may rescind approval of an existing Mentor-
Prot[eacute]g[eacute] agreement if it determines that such an action is 
in the Department's best interest. The recission shall be in writing and 
sent to the mentor and prot[eacute]g[eacute] firms after approval by the 
A/SDBU Operations Director. Recission of an agreement does not change 
the terms of the subcontract between the mentor and the 
prot[eacute]g[eacute] or the prime contractor's obligations under its 
subcontracting plan.
    (o) Solicitation provision and contract clause. (1) The contracting 
officer shall insert the provision at 652.219-72, Department of State 
Mentor-Prot[eacute]g[eacute] Program, in all unrestricted solicitations 
exceeding $500,000 ($1,000,000 for construction) that offer 
subcontracting opportunities.
    (2) The contracting officer shall insert the clause at DOSAR 
652.219-73, Mentor Requirements and Evaluation, in all contracts where 
the prime contractor has signed a Mentor-Prot[eacute]g[eacute]

[[Page 339]]

Agreement with the Department of State.

[69 FR 19333, Apr. 13, 2004]

    Subpart 619.4_Cooperation with the Small Business Administration



Sec. 619.402  Small Business Administration procurement center 

representatives.



Sec. 619.402-70  DOS designee.

    Where the FAR requires action by a Small Business Administration 
procurement center representative, but one has not been assigned to the 
DOS contracting activity, the A/SDBU Operations Director shall perform 
the action so required.

               Subpart 619.5_Set-Asides for Small Business



Sec. 619.501  General.

    (c) Contracting officers shall use Department of State Form DS-1910, 
Small Business Review--Actions Above the Simplified Acquisition 
Threshold, to document set-aside decisions.

[59 FR 66759, Dec. 28, 1994, as amended at 60 FR 39663, Aug. 3, 1995; 64 
FR 43624, Aug. 11, 1999]



Sec. 619.505  Rejecting Small Business Administration recommendations.

    The Procurement Executive is the agency head for the purposes of FAR 
19.505.



Sec. 619.506  Withdrawing or modifying set asides.

    (b) The Procurement Executive shall resolve disagreements between 
the A/SDBU Operations Director and the contracting officer.

[59 FR 66759, Dec. 28, 1994]

     Subpart 619.6_Certificates of Competency and Determinations of 
                               Eligibility



Sec. 619.602  Procedures.



Sec. 619.602-1  Referral.

    The contracting officer shall transmit to the A/SDBU Operations 
Director concurrently with the submission to the appropriate SBA 
Regional Office, a copy of the documentation supporting the 
determination that a small business concern is not responsible, as 
required by FAR 19.602-1(a).

         Subpart 619.7_The Small Business Subcontracting Program



Sec. 619.705  Responsibilities of the contracting officer under the 

subcontracting assistance program.



Sec. 619.705-1  General support of the program.

    It is the Department's policy to incorporate its current fiscal year 
goals as negotiated with the SBA into all pertinent Department 
solicitations, in addition to the standard subcontract clauses. 
Incorporation of the goals does not require that large prime contractors 
must subcontract, but does require that to the extent they plan to 
subcontract, specific goals be established for doing business with 
small, small disadvantaged, women-owned small, HUBZone small, veteran-
owned small, and service-disabled veteran-owned small business firms. 
Where funds are available, an incentive clause such as that found in FAR 
52.219-10, Incentive Subcontracting Program, is encouraged.

[69 FR 19335, Apr. 13, 2004]



Sec. 619.705-3  Preparing the solicitation.

    To further promote the use of small, disadvantaged, women-owned 
small, HUBZone small, veteran-owned small, and service-disabled veteran-
owned small business firms by large prime contractors, contracting 
officers are encouraged to consider the adequacy of the subcontracting 
plans, and/or past performance in achieving negotiated subcontract 
goals, as part of the overall evaluation of the technical proposals.

[69 FR 19335, Apr. 13, 2004]



Sec. 619.705-4  Reviewing the subcontracting plan.

    A/SDBU shall review subcontracting plans to determine if small, 
small disadvantaged, women-owned small, HUBZone small, veteran-owned 
small, and service-disabled veteran-owned

[[Page 340]]

small business concerns are afforded the maximum practicable opportunity 
to participate as subcontractors. A/SDBU shall recommend to the 
contracting officer changes needed to subcontracting plans found to be 
deficient.

[69 FR 19335, Apr. 13, 2004]



Sec. 619.705-6  Postaward responsibilities of the contracting officer.



Sec. 619.705-6-70  Reporting responsibilities.

    (a) The contracting officer shall forward to the A/SDBU Operations 
Director a copy of each subcontracting plan that was incorporated into a 
contract or contract modification. Each contracting activity shall 
maintain a list of its active prime contracts that contain 
subcontracting plans.
    (b) Contracting officers shall collect subcontracting data from 
contractors required to establish subcontracting plans in support of 
small, small disadvantaged, women-owned small, HUBZone small, veteran-
owned small, and service-disabled veteran-owned small business concerns. 
This data shall be collected annually and semiannually, using Standard 
Form 295, Summary Subcontracting Report, for the annual submissions, and 
Standard Form 294, Subcontracting Report for Individual Contracts, for 
the semiannual submissions. The head of the contracting activity shall 
forward these reports to the A/SDBU Operations Director, not later than 
the 30th day of the month following the close of the reporting period.

[53 FR 26170, July 11, 1988, as amended at 59 FR 66760, Dec. 28, 1994; 
69 FR 19335, Apr. 13, 2004]



Sec. 619.708-70  Solicitation provisions and contract clauses.

    The contracting officer shall insert a provision substantially the 
same as the provision at 652.219-70, Department of State Subcontracting 
Goals, in solicitations whenever the clause at FAR 52.219-9, Small 
Business Subcontracting Plan, is used.

[59 FR 66760, Dec. 28, 1994, as amended at 69 FR 19335, Apr. 13, 2004]

 Subpart 619.8_Contracting with the Small Business Administration (The 
                              8(a) Program)

    Source: 64 FR 43624, Aug. 11, 1999, unless otherwise noted.



Sec. 619.800  General.

    (d) Utilizing Memoranda of Understanding (MOUs), the SBA has 
delegated its authority to contract directly with program participants 
under Section 8(a) of the Small Business Act to the Senior Procurement 
Executives of various Federal contracting activities. The Department of 
State has signed an MOU with SBA, effective May 6, 1998. Under the MOU, 
a contract may be awarded directly to an 8(a) firm on either a sole 
source or competitive basis. The SBA reserves the right to withdraw any 
delegation issued as a result of an MOU; however, any such withdrawal 
shall have no effect on contracts currently awarded under the MOU.



Sec. 619.803  Selecting acquisitions for the 8(a) program.



Sec. 619.803-70  Responsibilities of the Office of Small and 

Disadvantaged Business Utilization (A/SDBU).

    A/SDBU shall review the capabilities of 8(a) concerns and 
disseminate that information to DOS program and contracting personnel. 
As necessary, A/SDBU shall obtain from the SBA or 8(a) concerns 
supplemental information for DOS program and contracting personnel.



Sec. 619.803-71  Simplified procedures for 8(a) acquisitions under MOUs.

    Contracting activities may use the simplified acquisition procedures 
of FAR part 13 and DOSAR part 613 to issue purchase orders or contracts, 
not exceeding $100,000, to 8(a) participants. The $100,000 limitation 
for use of FAR part 13 simplified acquisition procedures applies to the 
acquisition of both commercial and non-commercial items. The following 
applies to such acquisitions:
    (a) Neither offering letters to, nor acceptance letters from, the 
SBA are required.

[[Page 341]]

    (b) The contracting activity shall use the Central Contractor 
Registration database (http://www.ccr.gov) to establish that the 
selected 8(a) firm is a current program participant.
    (c) Once an 8(a) contractor has been identified, the agency 
contracting officer shall establish the price with the selected 8(a) 
contractor.
    (d) The contracting officer shall issue the purchase order or 
contract directly to the 8(a) firm in accordance with the provisions of 
FAR part 13 and DOSAR part 613. The contracting officer shall insert FAR 
clause 52.219-14, Limitations on Subcontracting, and DOSAR clause 
652.219-71, Section 8(a) Direct Award, in all purchase orders and 
contracts awarded under this subsection. The contracting officer's title 
shall include the contracting activity, as follows: Contracting Officer 
for the Department of State [insert contracting activity]. In addition, 
in accordance with the MOU, A/SDBU staff who have been issued limited 
contracting officer warrants for this purpose, shall sign the purchase 
order or contract as a third party.
    (e) The contracting officer shall forward to the SBA District Office 
serving the 8(a) firm a copy of the purchase order or contract within 
five days after the order is issued.

[64 FR 43624, Aug. 11, 1999, as amended at 71 FR 34839, June 16, 2006]



Sec. 619.804  Evaluation, offering, and acceptance.



Sec. 619.804-2  Agency offering.

    (a) When applicable, this notification shall identify that the 
offering is in accordance with the MOU identified in 619.800.



Sec. 619.804-3  SBA acceptance.



Sec. 619.804-3-70  SBA acceptance under MOUs for acquisitions exceeding 

$100,000.

    (a) The SBA's decision whether to accept the requirement shall be 
transmitted to the contracting agency in writing within five working 
days of receipt of the offer.
    (b) The SBA may request, and the contracting agency may grant, an 
extension beyond the five-day limit.
    (c) SBA's acceptance letter should be faxed or e-mailed to the 
offering contracting agency.
    (d) If the offering contracting agency has not received an 
acceptance or rejection of the offering from SBA within five days of 
SBA's receipt of the offering letter, the contracting agency may assume 
that the requirement has been accepted and proceed with the acquisition.
    (e) The contents of the acceptance letter shall be limited to the 
eligibility of the recommended 8(a) contractor.



Sec. 619.805  Competitive 8(a).



Sec. 619.805-2  Procedures.

    (a) 8(a) acquisitions may also be conducted using simplified 
acquisition procedures (see FAR part 13). The award process is 
significantly streamlined where an MOU is in place.
    (b) For requirements exceeding $100,000 processed under the MOU 
cited in 619.800, the contracting officer shall submit the name, 
address, and telephone number of the low offeror (in sealed bid 
acquisitions) or the apparent successful offeror (in negotiated 
acquisitions) to the SBA Business Opportunity Specialist at the field 
office servicing the identified 8(a) firm. The SBA shall determine the 
eligibility of the firm(s) and advise the contracting officer within two 
working days of the receipt of the request. If the firm is determined to 
be ineligible, the contracting officer shall submit information on the 
next low offeror or next apparent successful offeror, as applicable, to 
the cognizant SBA field office.

[64 FR 43624, Aug. 11, 1999, as amended at 69 FR 19335, Apr. 13, 2004; 
72 FR 45695, Aug. 15, 2007]



Sec. 619.806  Pricing the 8(a) contract.

    (a) When required by FAR subpart 15.4, the contracting officer shall 
obtain certified cost or pricing data directly from the 8(a) contractor 
if the contract is being awarded under the MOU cited in 619.800.



Sec. 619.808  Contract negotiation.



Sec. 619.808-1  Sole source.

    (a) If the acquisition is conducted under an MOU cited in 619.800, 
the 8(a)

[[Page 342]]

contractor is responsible for negotiating with the agency within the 
time established by the agency. If the 8(a) contractor does not 
negotiate within the established time and the agency cannot allow 
additional time, the agency may, after notification and approval by SBA, 
proceed with the acquisition from other sources.
    (b) If the acquisition is conducted under an MOU cited in 619.800, 
the agency is delegated the authority to negotiate directly with the 
8(a) participant; however, if requested by the 8(a) participant, the SBA 
may participate in the negotiations.



Sec. 619.810  SBA appeals.

    (c) The Procurement Executive is the agency head for the purposes of 
FAR 19.810(c).

[64 FR 43624, Aug. 11, 1999, as amended at 72 FR 45696, Aug. 15, 2007]



Sec. 619.811  Preparing the contracts.



Sec. 619.811-1  Sole source.

    (d) If the award is to be made under an MOU cited in 619.800, the 
contract to be awarded by the contracting activity to the 8(a) firm 
shall be prepared in accordance with the contracting activity's normal 
procedures, given contract type and dollar amount, that the contracting 
activity would use for a similar, non-8(a) acquisition, except for the 
following:
    (1) The award form shall cite 41 U.S.C. 253(c)(5) or 10 U.S.C. 
2304(c)(5), as appropriate, and 15 U.S.C. 637(a) as the authority for 
use of other than full and open competition.
    (2) The contracting officer shall insert FAR 52.219-14, Limitations 
on Subcontracting, and DOSAR 652.219-71, Section 8(a) Direct Awards.
    (3) For acquisitions exceeding $100,000, the contracting activity 
shall include SBA's requirement number on the award document.
    (4) A single award document shall be used between the agency and the 
8(a) contractor, i.e., an SBA signature will not be required. The title 
of the agency contracting officer shall include the contracting 
activity, as follows: Contracting Officer for the Department of State 
[insert contracting activity]. In addition, in accordance with the MOU, 
A/SDBU staff who have been issued limited contracting officer warrants 
for this purpose shall sign the contract as a third party. The 8(a) 
contractor's signature shall be placed on the award document as the 
prime contractor. The 8(a) contractor's name and address shall be placed 
in the ``Awarded to'' or ``Contractor name'' block on the appropriate 
form.



Sec. 619.811-2  Competitive.

    (a) If the award is made under the delegation of 8(a) contracting 
authority, competitive contracts for 8(a) firms shall be prepared in 
accordance with the same standards as 8(a) sole source contracts. See 
619.811-1.
    (b) If the acquisition is conducted under the MOU cited in 619.800, 
the process for obtaining signatures shall be as specified in 619.811-
1(d)(4).



Sec. 619.811-3  Contract clauses.

    (d) The contracting officer shall insert the clause at FAR 52.219-
18, Notification of Competition Limited to Eligible 8(a) Concerns, 
(Deviation), in competitive solicitations and contracts exceeding 
$100,000 when the acquisition is processed under the MOU cited in 
619.800.
    (e) The contracting officer shall insert the clause at FAR 52.219-
14, Limitations on Subcontracting, and DOSAR 652.219-71, Section 8(a) 
Direct Awards, in all solicitations and contracts that are processed 
under the MOU cited at 619.800. The clauses at FAR 52.219-11, Special 
8(a) Contract Conditions; 52.219-12, Special 8(a) Subcontract 
Conditions; and, 52.219-17, Section 8(a) Award, shall not be used.

[64 FR 43624, Aug. 11, 1999, as amended at 71 FR 34839, June 16, 2006; 
72 FR 45696, Aug. 15, 2007]



Sec. 619.812  Contract administration.

    (d) The head of the contracting activity is the agency head for the 
purposes of FAR 19.812(d). Awards under the MOU cited in 619.800 are 
subject to 15 U.S.C. 637(a)(21). These contracts contain the clause at 
DOSAR 652.219-71, Section 8(a) Direct Awards, that requires the 8(a) 
contractor to notify the SBA and the contracting officer when ownership 
of the firm is being transferred.

[[Page 343]]

      PART 622_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

       Subpart 622.3_Contract Work Hours and Safety Standards Act

Sec.

Sec. 622.302 Liquidated damages and overtime pay.

   Subpart 622.4_Labor Standards for Contracts Involving Construction


Sec. 622.404 Davis-Bacon Act wage determinations.

Sec. 622.404-3 Procedures for requesting wage determinations.

Sec. 622.404-6 Modifications of wage determinations.

Sec. 622.404-7 Correction of wage determinations containing clerical 
          errors.

Sec. 622.404-11 Wage determination appeals.

Sec. 622.406 Administration and enforcement.

Sec. 622.406-1 Policy.

Sec. 622.406-8 Investigations.

Sec. 622.406-9 Withholding from or suspension of contract payments.

Sec. 622.406-10 Disposition of disputes concerning construction contract 
          labor standards enforcement.

Sec. 622.406-11 Contract terminations.

Sec. 622.406-12 Cooperation with the Department of Labor.

             Subpart 622.6_Walsh-Healey Public Contracts Act


Sec. 622.604 Exemptions.

Sec. 622.604-2 Regulatory exemptions.

               Subpart 622.8_Equal Employment Opportunity


Sec. 622.803 Responsibilities.

Sec. 622.807 Exemptions.

 Subpart 622.13_Special Disabled Veterans, Veterans of the Vietnam Era, 
                       and Other Eligible Veterans


Sec. 622.1305 Waivers.

Sec. 622.1310 Solicitation provision and contract clauses.

         Subpart 622.14_Employment of Workers with Disabilities


Sec. 622.1403 Waivers.

Sec. 622.1408 Contract clause.

Subpart 622.15_Prohibition of Acquisition of Products Produced by Forced 
                        or Indentured Child Labor


Sec. 622.1503 Procedures for acquiring end products on the List of 
          Products Requiring Contractor Certification as to Forced or 
          Indentured Child Labor.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26172, July 11, 1988, unless otherwise noted.

       Subpart 622.3_Contract Work Hours and Safety Standards Act



Sec. 622.302  Liquidated damages and overtime pay.

    The authority to make the determination prescribed in FAR 22.302(c) 
is delegated, without power of redelegation, to the head of the 
contracting activity.

[55 FR 5774, Feb. 16, 1990]

   Subpart 622.4_Labor Standards for Contracts Involving Construction

    Source: 55 FR 5774, Feb. 16, 1990, unless otherwise noted.



Sec. 622.404  Davis-Bacon Act wage determinations.



Sec. 622.404-3  Procedures for requesting wage determinations.

    The cognizant contracting activity (see 601.603-70) is the 
contracting agency for the purposes of 22.404-3(b) and (d).

[53 FR 26172, July 11, 1988, as amended at 72 FR 45696, Aug. 15, 2007]



Sec. 622.404-6  Modifications of wage determinations.

    The cognizant contracting activity is the contracting agency for the 
purposes of FAR 22.404-6.
    (b)(6) The head of the contracting activity is the agency head's 
designee for the purposes of FAR 22.404-6(b)(6).

[55 FR 5774, Feb. 16, 1990, as amended at 59 FR 66760, Dec. 28, 1994]

[[Page 344]]



Sec. 622.404-7  Correction of wage determinations containing clerical 

errors.

    The cognizant contracting activity is the contracting agency for the 
purposes of FAR 22.404-7.



Sec. 622.404-11  Wage determination appeals.

    The cognizant contracting activity is the contracting agency for the 
purposes of FAR 22.404-11.



Sec. 622.406  Administration and enforcement.



Sec. 622.406-1  Policy.

    The cognizant contracting activity is the contracting agency for the 
purposes of FAR 22.406-1(a).



Sec. 622.406-8  Investigations.

    (a) The chief of the contracting activity is responsible for 
conducting labor standards investigations as prescribed in FAR 22.406-
8(a).
    (d) The Procurement Executive is the agency head's designee for the 
purposes of FAR 22.406-8(d).



Sec. 622.406-9  Withholding from or suspension of contract payments.

    The authority to suspend contract payments pursuant to FAR 22.406-
9(b) is delegated, without power of redelegation, to the head of the 
contracting activity.



Sec. 622.406-10  Disposition of disputes concerning construction 

contract labor standards enforcement.

    The cognizant contracting activity is the contracting agency for the 
purposes of FAR 22.406-10(b).



Sec. 622.406-11  Contract terminations.

    The cognizant contracting activity is the contracting agency for the 
purposes of FAR 22.406-11.



Sec. 622.406-12  Cooperation with the Department of Labor.

    Any information furnished to the Department of Labor pursuant to FAR 
22.406-12(a) shall be submitted through the head of the contracting 
activity.

             Subpart 622.6_Walsh-Healey Public Contracts Act



Sec. 622.604  Exemptions



Sec. 622.604-2  Regulatory exemptions.

    The Procurement Executive is the agency head for the purposes of FAR 
22.604-2(b)(1).

[55 FR 5774, Feb. 16, 1990, as amended at 71 FR 34839, June 16, 2006]

               Subpart 622.8_Equal Employment Opportunity



Sec. 622.803  Responsibilities.

    (c) The Procurement Executive is the agency head for the purpose of 
FAR 22.803(c).

[64 FR 43626, Aug. 11, 1999]



Sec. 622.807  Exemptions.

    The Procurement Executive is the agency head for the purposes of FAR 
22.807(a)(1).

 Subpart 622.13_Special Disabled Veterans, Veterans of the Vietnam Era, 
                       and Other Eligible Veterans



Sec. 622.1305  Waivers.

    The Procurement Executive is the agency head for the purposes of FAR 
22.1305.

[53 FR 26172, July 11, 1988. Redesignated and amended at 69 FR 19335, 
Apr. 13, 2004]



Sec. 622.1310  Solicitation provision and contract clauses.

    The Procurement Executive is the agency head for the purposes of FAR 
22.1310 (a)(1)(ii) and (a)(2).

[55 FR 5775, Feb. 16, 1990. Redesignated and amended at 69 FR 19336, 
Apr. 13, 2004; 72 FR 45696, Aug. 15, 2007]

         Subpart 622.14_Employment of Workers with Disabilities



Sec. 622.1403  Waivers.

    The Procurement Executive is the agency head for the purposes of FAR 
22.1403.

[[Page 345]]



Sec. 622.1408  Contract clause.

    The Procurement Executive is the agency head for the purposes of FAR 
22.1408.

[55 FR 5775, Feb. 16, 1990]

Subpart 622.15_Prohibition of Acquisition of Products Produced by Forced 
                        or Indentured Child Labor


Sec. 622.1503  Procedures for acquiring end products on the List of 

Products Requiring Contractor Certification as to Forced or 

Indentured Child Labor.

    (e) The contracting officer shall refer to the DOS Inspector General 
for Investigation any instances where the contracting officer has reason 
to believe that forced or indentured child labor was used to mine, 
produce, or manufacture an end product furnished pursuant to a contract 
awarded subject to the certification required in FAR 22.1503(c).

[69 FR 19336, Apr. 13, 2004]

  PART 623_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
       TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

Subpart 623.3_Hazardous Material Identification and Material Safety Data

Sec.

Sec. 623.302-70 Policy.

                Subpart 623.4_Use of Recovered Materials


Sec. 623.400 Scope of subpart.

                    Subpart 623.5_Drug-Free Workplace


Sec. 623.506 Suspension of payments, termination of contract, and 
          debarment and suspension actions.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26172, July 11, 1988, unless otherwise noted.

Subpart 623.3_Hazardous Material Identification and Material Safety Data



Sec. 623.302-70  Policy.

    Any work which affects the safety and/or health of post personnel, 
including the handling of hazardous materials, shall comply with the 
applicable requirements of the Department of State Safety/Health and 
Environmental Management Resource Guide (6 FAM 606.7). Requirements 
offices shall ensure that any contractor operations and activities, 
whether sponsored by the post or other Department organization, are 
closely coordinated with the Post Occupational Safety and Health Officer 
during both planning and implementation phases.

[59 FR 66760, Dec. 28, 1994]

                Subpart 623.4_Use of Recovered Materials

    Source: 64 FR 43626, Aug. 11, 1999, unless otherwise noted.



Sec. 623.400  Scope of subpart.

    The affirmative procurement program is applicable to all domestic 
acquisitions of items currently designated by an EPA guideline or by 
future guidelines promulgated by EPA. The requirements of this section 
are not applicable to acquisitions awarded outside the United States or 
its possessions.

[64 FR 43626, Aug. 11, 1999, as amended at 69 FR 19336, Apr. 13, 2004]

                    Subpart 623.5_Drug-Free Workplace



Sec. 623.506  Suspension of payments, termination of contract, and 

debarment and suspension actions.

    The authority to approve the determination prescribed in FAR 
23.506(e) is reserved to the Secretary of State.

[55 FR 5775, Feb. 16, 1990]

[[Page 346]]

        PART 624_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

    Authority: 22 U.S.C. 2658; 40 U.S.C. 486(c); 48 CFR Subpart 1.3.

                Subpart 624.2_Freedom of Information Act



Sec. 624.202  Policy.

    DOS regulations implementing the Freedom of Information Act (5 
U.S.C. 552), as amended, are codified in Chapter 1, Department of State, 
Subchapter R, Access to Information, Part 171, Availability of 
information and records to the public, of Title 22 of the Code of 
Federal Regulations (22 CFR Part 171).

[53 FR 26172, July 11, 1988]

                      PART 625_FOREIGN ACQUISITION

                 Subpart 625.1_Buy American Act_Supplies

Sec.

Sec. 625.103 Exceptions.

Sec. 625.105 Determining reasonableness of cost.

          Subpart 625.2_Buy American Act_Construction Materials


Sec. 625.202 Exceptions.

Sec. 625.204 Evaluating offers of foreign construction material.

        Subpart 625.70_Arab League Boycott and Related Provisions


Sec. 625.7001 Policy.

Sec. 625.7002 Solicitation provision and contract clause.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26172, July 11, 1988, unless otherwise noted.

                 Subpart 625.1_Buy American Act_Supplies



Sec. 625.103  Exceptions.

    (a) The authority to make the determination prescribed in FAR 
25.103(a) is delegated, without power of redelegation, to the head of 
the contracting activity.

[69 FR 19336, Apr. 13, 2004]



Sec. 625.105  Determining reasonableness of cost.

    (a)(1) The authority to make the determinations prescribed in FAR 
25.105(a)(1) is delegated, without power of redelegation, to the head of 
the contracting activity.

[69 FR 19336, Apr. 13, 2004]

          Subpart 625.2_Buy American Act_Construction Materials



Sec. 625.202  Exceptions.

    (a)(1) The authority to make the determination prescribed in FAR 
25.202(a)(1) is delegated, without power of redelegation, to the head of 
the contracting activity.

[69 FR 19336, Apr. 13, 2004]



Sec. 625.204  Evaluating offers of foreign construction material.

    (b) The head of the contracting activity is the agency head for the 
purposes of FAR 25.204(b).

[69 FR 19336, Apr. 13, 2004]

        Subpart 625.70_Arab League Boycott and Related Provisions

    Source: 64 FR 43626, Aug. 11, 1999, unless otherwise noted.



Sec. 625.7001  Policy.

    (a) Section 565 of the Fiscal Year 94/95 Foreign Relations 
Authorizations Act (Public Law 103-236) prohibits the Department of 
State from entering into any contract that expends funds appropriated to 
the Department of State:
    (1) With a foreign person that complies with the Arab League Boycott 
of Israel; or,
    (2) With any foreign or United States person that discriminates in 
the award of subcontracts on the basis of religion.
    (b) This authority has continuing effect. Section 565 requires 
specific language to be included in all Invitations for Bids and 
Requests for Proposals with respect to a contract subject to Section 
565's prohibitions.
    (c) Section 565 may be waived on a country-by-country basis if such 
a waiver is in the national interest and

[[Page 347]]

necessary to carry on diplomatic functions and is approved by the 
Secretary of State or his/her designee.



Sec. 625.7002  Solicitation provision and contract clause.

    Contracting officers shall include the following provision and 
clause in all solicitations and contracts exceeding the simplified 
acquisition threshold, unless a waiver has been granted in accordance 
with DOSAR 625.7001(c):
    (a) 652.225-70, Arab League Boycott of Israel; and.
    (b) 652.225-71, Section 8(a) of the Export Administration Act, as 
amended.

[[Page 348]]

              SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS

                 PART 627_PATENTS, DATA, AND COPYRIGHTS

                          Subpart 627.2_Patents

Sec.

Sec. 627.203 Patent indemnification of Government by contractor.

Sec. 627.203-6 Clause for Government waiver of indemnity.

         Subpart 627.3_Patent Rights Under Government Contracts


Sec. 627.303 Contract clauses.

Sec. 627.304 Procedures.

Sec. 627.304-1 General.

Sec. 627.304-5 Appeals.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 59 FR 66763, Dec. 28, 1994, unless otherwise noted.

                          Subpart 627.2_Patents



Sec. 627.203  Patent indemnification of Government by contractor.



Sec. 627.203-6  Clause for Government waiver of indemnity.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 27.203-6.

         Subpart 627.3_Patent Rights Under Government Contracts



Sec. 627.303  Contract clauses.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 27.303. Determinations issued by the Procurement 
Executive shall be reviewed by the Office of the Legal Adviser.



Sec. 627.304  Procedures.



Sec. 627.304-1  General.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 27.304-1. Questions regarding fact-finding procedures as 
specified in FAR 27.304-1(a)(4) shall be referred to A/OPE. 
Determinations issued by the Procurement Executive shall be reviewed by 
the Office of the Legal Adviser.



Sec. 627.304-5  Appeals.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 27.304-5. Questions regarding the appeals procedure as 
specified in FAR 27.304-5(b) shall be referred to A/OPE.

                      PART 628_BONDS AND INSURANCE

                           Subpart 628.1_Bonds

Sec.

Sec. 628.101 Bid guarantees.

Sec. 628.101-1 Policy on use.

Sec. 628.106-6 Furnishing information.

          Subpart 628.2_Sureties and Other Securities for Bonds


Sec. 628.203 Acceptability of individual surety.

Sec. 628.203-7 Exclusion of individual sureties.

                         Subpart 628.3_Insurance


Sec. 628.305 Overseas workers' compensation and war-hazard insurance.

Sec. 628.309 Contract clauses for workers' compensation insurance.

Sec. 628.309-70 DOSAR provisions and clauses.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26173, July 11, 1988, unless otherwise noted.

                           Subpart 628.1_Bonds

    Source: 59 FR 66763, Dec. 28, 1994, unless otherwise noted.



Sec. 628.101  Bid guarantees.



Sec. 628.101-1  Policy on use.

    (c) The Procurement Executive is the agency head's designee for the 
purposes of FAR 28.101-1(c).



Sec. 628.106-6  Furnishing information.

    (c) The head of the contracting activity is the agency head's 
designee for the purposes of FAR 28.106-6(c).

[[Page 349]]

          Subpart 628.2_Sureties and Other Securities for Bonds



Sec. 628.203  Acceptability of individual surety.

    (g) Evidence of possible criminal or fraudulent activities by an 
individual surety shall be referred to the Assistant Inspector General 
for Investigations.

[59 FR 66763, Dec. 28, 1994, as amended at 69 FR 19336, Apr. 13, 2004]



Sec. 628.203-7  Exclusion of individual sureties.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 28.203-7.

[59 FR 66763, Dec. 28, 1994]

                         Subpart 628.3_Insurance

    Source: 71 FR 34840, June 16, 2006, unless otherwise noted.



Sec. 628.305  Overseas workers' compensation and war-hazard insurance.

    (b)(1) Acquisitions for services, including construction but 
excluding personal services contracts, requiring contractor personnel to 
perform work outside of the United States, shall include the contractual 
obligation for coverage under the Defense Base Act (42 U.S.C. Sections 
1651-1654, as amended), for covered contractor employees. For the 
purposes of this section, ``covered contractor employees'' includes the 
following individuals:
    (i) United States citizens or residents;
    (ii) Individuals hired in the United States or its possessions, 
regardless of citizenship; and,
    (iii) Local nationals and third country nationals where contract 
performance takes place in a country where there are no local workers' 
compensation laws.
    (2) Individuals who are self-employed (i.e., they have not 
incorporated) do not meet the definition of an employee. No Defense Base 
Act insurance is required when contracting with these individuals.
    (3) Exceptions are discussed in paragraphs (e)(1) and (f) of this 
section.
    (c) The Department of State has entered into a contract with an 
insurance broker and carrier to provide Defense Base Act insurance (at a 
fixed rate for services and construction) to cover DOS contracts that 
require performance overseas by covered contractor employees. Upon award 
of a contract that requires Defense Base Act insurance, the contracting 
officer shall provide the contractor with the name of the insurance 
broker from which the contractor must acquire the Defense Base Act 
insurance.
    (d) The authority to recommend a waiver from the Defense Base Act, 
as set forth in FAR 28.305(d), is reserved to the Secretary of State.
    (e)(1) The Secretary of Labor has waived the applicability of the 
Defense Base Act to all DOS service contracts, including construction, 
for contractor employees who are local nationals or third country 
nationals. This waiver is conditioned on the requirement for the 
contractor to provide workers' compensation benefits against the risk of 
work injury or death and assume liability toward the employees and their 
beneficiaries for war-hazard injury, death, capture, or detention as 
prescribed by the local workers' compensation laws.
    (2) In cases where a contract is performed in a country where there 
are no local workers' compensation laws, local and third country 
national contractor employees are considered to be ``covered contractor 
employees'', and the contractor shall acquire Defense Base Act insurance 
for those employees pursuant to the contract between the Department of 
State and the Defense Base Act insurance broker.
    (f)(1) Section 16 of the State Department Basic Authorities Act (22 
U.S.C. 2680a), as amended, provides that the Defense Base Act shall not 
apply with respect to such contracts as the Secretary of State 
determines are contracts with persons employed to perform work for the 
Department of State on an intermittent basis for not more than 90 days 
in a calendar year. The Department of State has established that 
``persons'' includes employees hired by companies under contract with 
the Department. The Procurement Executive has the authority to

[[Page 350]]

issue the waivers for employees who work on an intermittent or short-
term basis. Waivers may be issued only for employees who are U.S. 
citizens and residents, and only where the contractor provides evidence 
of alternative workers' compensation coverage for those employees. 
Waivers may not be issued for local or third country nationals.
    (2) The contractor shall submit waiver requests to the contracting 
officer. The request shall contain the following information:
    (i) Contract number;
    (ii) Name of contractor;
    (iii) Brief description of the services to be provided under the 
contract and country of performance;
    (iv) Name and position title of individual(s);
    (v) Nationality of individual(s) (must be U.S. citizen or resident);
    (vi) Dates (or timeframe) of performance at the overseas location; 
and
    (vii) Evidence of alternative workers' compensation coverage for 
these employees (e.g., evidence that the State workers' compensation 
program covers workers on short-term foreign assignments).
    (3) The contracting officer shall review the request for 
completeness and accuracy. If the request is complete and accurate, the 
contracting officer shall forward the request to the Procurement 
Executive. If the contractor does not provide complete and accurate 
information, the contracting officer shall return the request to the 
contractor with an explanation as to what additional information is 
required.
    (4) The Procurement Executive shall review requests for waiver 
forwarded by the contracting officer and either approve or disapprove 
the request. The Procurement Executive shall return the request 
indicating his/her approval or disapproval to the contracting officer. 
Any request that is not approved shall describe the reason(s) why the 
request was not approved. The contracting officer shall provide the 
contractor with the original of the approved or disapproved document and 
maintain a copy in the contract file.



Sec. 628.309  Contract clauses for workers' compensation insurance.



Sec. 628.309-70  DOSAR provisions and clauses.

    (a) The contracting officer shall insert the provision at 652.228-
70, Defense Base Act--Covered Contractor Employees, in all solicitations 
for services and construction to be performed outside of the United 
States.
    (b) The contracting officer shall insert the clause at 652.228-71, 
Workers' Compensation Insurance (Defense Base Act)--Services, in 
solicitations and contracts for services to be performed outside of the 
United States when there is a reasonable expectation that offers will 
include covered contractor employees, as defined in 628.305(b). If the 
contracting officer is unsure as to whether offers will include covered 
contractor employees, the contracting officer shall insert the clause. 
If the contract is for construction, the contracting officer shall 
insert the clause with its Alternate I.
    (c) The contracting officer shall insert the provision at 652.228-
74, Defense Base Act Insurance Rates--Limitation, in solicitations for 
services or construction to be performed outside of the United States 
when there is a reasonable expectation that offers will include covered 
contractor employees, as defined in 628.305(b). If the contracting 
officer is unsure as to whether offers will include covered contractor 
employees, the contracting officer shall insert the provision.

                             PART 629_TAXES

                          Subpart 629.1_General

Sec.

Sec. 629.101 Resolving tax problems.

                   Subpart 629.2_Federal Excise Taxes


Sec. 629.202 General exemptions.

Sec. 629.202-70 Exemption from other Federal taxes.

                   Subpart 629.3_State and Local Taxes


Sec. 629.302 Application of State and local taxes to the Government.

Sec. 629.303 Application of State and local taxes to Government 
          contractors and subcontractors.

[[Page 351]]

                     Subpart 629.4_Contract Clauses


Sec. 629.401 Domestic contracts.

Sec. 629.401-70 DOSAR contract clause.

Sec. 629.402 Foreign contracts.

Sec. 629.402-1 Foreign fixed-price contracts.

Sec. 629.402-1-70 DOSAR contract clause.

    Authority: 22 U.S.C. 2658; 40 U.S.C. 486(c); 48 CFR Subpart 1.3.

    Source: 53 FR 26173, July 11, 1988, unless otherwise noted.

                          Subpart 629.1_General



Sec. 629.101  Resolving tax problems.

    In certain instances, acquisitions by posts are exempt from various 
taxes in foreign countries. Contracting officers shall ascertain such 
exemptions and take maximum advantage of them.

                   Subpart 629.2_Federal Excise Taxes



Sec. 629.202  General exemptions.



Sec. 629.202-70  Exemptions from other Federal taxes.

    Taxable articles purchased for presentation abroad as gifts to 
foreign dignitaries and taxable articles purchased for presentation as 
gifts to foreign dignitaries visiting in the United States but which are 
to be taken out of the United States may be exempt from retail taxes or 
manufacturers excise taxes, in accordance with the letter of October 18, 
1963, from the Chief, Excise Tax Branch, Internal Revenue Service.

                   Subpart 629.3_State and Local Taxes



Sec. 629.302  Application of State and local taxes to the Government.

    The Office of the Legal Adviser is the agency-designated counsel for 
the purposes of FAR 29.302(a).



Sec. 629.303  Application of State and local taxes to Government 

contractors and subcontractors.

    The authority to make the determination prescribed in FAR 29.303(a) 
is delegated, without power of redelegation, to the head of the 
contracting activity (see 601.603-70). The Office of the Legal Adviser 
is the agency-designated counsel for the purposes of FAR 29.303(c).

                     Subpart 629.4_Contract Clauses



Sec. 629.401  Domestic contracts.



Sec. 629.401-70  DOSAR contract clause.

    The contracting officer shall insert the clause at 652.229-71, 
Excise Tax Exemption Statement for Contractors Within the United States, 
in solicitations and contracts if the prospective contractor is located 
inside the United States and the acquisition involves export of supplies 
to an overseas post.



Sec. 629.402  Foreign contracts.



Sec. 629.402-1  Foreign fixed-price contracts.



Sec. 629.402-1-70  DOSAR contract clause.

    The contracting officer shall insert the clause at 652.229-71, 
Personal Property Disposition at Posts Abroad, in all solicitations and 
contracts performed overseas.

[64 FR 43627, Aug. 11, 1999]

            PART 630_COST ACCOUNTING STANDARDS ADMINISTRATION

                 Subpart 630.2_CAS Program Requirements



Sec. 630.201  Contract requirements.



Sec. 630.201-5  Waiver.

    (a) The Procurement Executive is the head of the agency for the 
purposes of FAR 30.201-5(a) and (b).

[69 FR 19336, Apr. 13, 2004]

            PART 631_CONTRACT COST PRINCIPLES AND PROCEDURES

                       Subpart 631.1_Applicability

Sec.

Sec. 631.101 Objectives.

          Subpart 631.2_Contracts with Commercial Organizations


Sec. 631.205 Selected costs.

Sec. 631.205-6 Compensation for personal services.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

[[Page 352]]


    Source: 59 FR 66764, Dec. 28, 1994, unless otherwise noted.

                       Subpart 631.1_Applicability



Sec. 631.101  Objectives.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 31.101.

          Subpart 631.2_Contracts with Commercial Organizations



Sec. 631.205  Selected costs.



Sec. 631.205-6  Compensation for personal services.

    (g)(3) The head of the contracting activity is the agency head's 
designee for the purpose of FAR 31.205-6(g)(6).

[64 FR 43627, Aug. 11, 1999, as amended at 72 FR 45696, Aug. 15, 2007]

                       PART 632_CONTRACT FINANCING

Sec.

Sec. 632.006 Reduction or suspension of contract payments upon finding 
          of fraud.

Sec. 632.006-1 General.

Sec. 632.006-2 Definitions.

Sec. 632.006-4 Procedures.

          Subpart 632.1_Non-Commercial Item Purchase Financing


Sec. 632.114 Unusual contract financing.

            Subpart 632.2_Commercial Item Purchase Financing


Sec. 632.201 Statutory authority.

         Subpart 632.4_Advance Payments for Non-Commercial Items


Sec. 632.402 General.

Sec. 632.404 Exclusions.

Sec. 632.407 Interest.

                     Subpart 632.7_Contract Funding


Sec. 632.702 Policy.

Sec. 632.702-70 DOS policy.

Sec. 632.703 Contract funding requirements.

Sec. 632.703-3 Contracts crossing fiscal years.

Sec. 632.705 Contract clauses.

Sec. 632.705-70 DOSAR contract clause.

                   Subpart 632.8_Assignment of Claims


Sec. 632.803 Policies.

                      Subpart 632.9_Prompt Payment


Sec. 632.906 Making payments.

Sec. 632.908 Contract clauses.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26173, July 11, 1988, unless otherwise noted.



Sec. 632.006  Reduction or suspension of contract payments upon finding 

of fraud.



Sec. 632.006-1  General.

    The Procurement Executive is the agency head for the purpose of FAR 
32.006-1.

[64 FR 43627, Aug. 11, 1999]



Sec. 632.006-2  Definitions.

    Remedy coordination official means the Procurement Executive.

[64 FR 43627, Aug. 11, 1999, as amended at 69 FR 19336, Apr. 13, 2004]



Sec. 632.006-4  Procedures.

    The Procurement Executive is the agency head for the purposes of FAR 
32.006-4.

[64 FR 43627, Aug. 11, 1999]

          Subpart 632.1_Non-Commercial Item Purchase Financing



Sec. 632.114  Unusual contract financing.

    The Procurement Executive is the agency head for the purpose of FAR 
32.114.

[64 FR 43627, Aug. 11, 1999]

            Subpart 632.2_Commercial Item Purchase Financing



Sec. 632.201  Statutory authority.

    The head of the contracting activity is the agency head for the 
purpose of FAR 32.201.

[64 FR 43627, Aug. 11, 1999]

         Subpart 632.4_Advance Payments for Non-Commercial Items



Sec. 632.402  General.

    (b) Advance payments shall be authorized sparingly. Contracting 
officers

[[Page 353]]

should consider the use of partial payments, fast payments, or more 
frequent payments as alternatives to advance payments.
    (c)(1)(iii) The authority to make the determination prescribed in 
FAR 32.402(c)(1)(iii) is delegated, without power of redelegation, to 
the head of the contracting activity (see 601.603-70). For acquisitions 
by overseas posts, the head of the contracting activity shall obtain the 
concurrence of the Procurement Executive before making a determination 
pursuant to this section.

[53 FR 26173, July 11, 1988, as amended at 59 FR 66764, Dec. 28, 1994]



Sec. 632.404  Exclusions.

    (a) Total advance payments may be authorized for the items listed in 
FAR 32.404(a), notwithstanding their designation as a commercial item 
and acquisition under FAR part 12 procedures.

[64 FR 43627, Aug. 11, 1999]



Sec. 632.407  Interest.

    (d) The Procurement Executive is the agency head's designee for the 
purposes of FAR 32.407(d).

[59 FR 66764, Dec. 28, 1994]

                     Subpart 632.7_Contract Funding

    Source: 64 FR 43628, Aug. 11, 1999, unless otherwise noted.



Sec. 632.702  Policy.



Sec. 632.702-70  DOS policy.

    The Department's policy is to provide full funding for all 
contracts, to the maximum extent practicable. FAR 32.704 and 32.705-2 
provide for incremental funding of cost-reimbursement contracts. Fixed-
price, labor-hour, and time-and-materials contracts for severable 
services may also be incrementally funded if full funding is not 
available at the time of contract award and the contracting officer 
executes a determination and findings, approved by the requirements 
office, justifying the need for incremental funding due to the 
unavailability of funds.



Sec. 632.703  Contract funding requirements.



Sec. 632.703-3  Contracts crossing fiscal years.

    (b) The head of the contracting activity is the agency head for the 
purpose of FAR 32.703-3(b).



Sec. 632.705  Contract clauses.



Sec. 632.705-70  DOSAR contract clause.

    The contracting officer shall insert the clause at 652.232-72, 
Limitation of Funds, in incrementally funded fixed-price, labor-hour, 
and time-and-materials solicitations and contracts for severable 
services.

                   Subpart 632.8_Assignment of Claims



Sec. 632.803  Policies.

    (b) The assignment of claims shall be prohibited for all personal 
services contracts. The assignment of claims shall also be prohibited 
for all contracts awarded and performed overseas, unless approval is 
received from the Procurement Executive. The Directors, Regional 
Procurement Support Offices may approve the assignment of claims for 
contracts under their administration after obtaining legal consultation.

[59 FR 66764, Dec. 28, 1994, as amended at 64 FR 43628, Aug. 11, 1999]

                      Subpart 632.9_Prompt Payment



Sec. 632.906  Making payments.

    (a) General. The authority to make the determination prescribed in 
FAR 32.906(a) is delegated, without power of redelegation, to the head 
of the contracting activity. Before making this determination, the head 
of the contracting activity shall consult with the appropriate financial 
office.

[69 FR 19336, Apr. 13, 2004]



Sec. 632.908  Contract clauses.

    (a) The contracting officer may insert a clause substantially the 
same as the clause at 652.232-70, Payment Schedule and Invoice 
Submission (Fixed-Price), in fixed-price type solicitations and 
contracts.

[[Page 354]]

    (b) The contracting officer may insert a clause substantially the 
same as the clause at 652.232-71, Voucher Submission (cost-
Reimbursement), in cost-reimbursement type solicitations and contracts.

[59 FR 66764, Dec. 28, 1994]

                PART 633_PROTESTS, DISPUTES, AND APPEALS

                         Subpart 633.1_Protests

Sec.

Sec. 633.102 General.

Sec. 633.103 Protests to the agency.

Sec. 633.104 Protests to GAO.

                   Subpart 633.2_Disputes and Appeals


Sec. 633.203 Applicability.

Sec. 633.214-70 Alternative dispute resolution.

Sec. 633.270 Disputes and appeals under DOS contracts subject to the 
          Contract Disputes Act of 1978.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26173, July 11, 1988, unless otherwise noted.

                         Subpart 633.1_Protests



Sec. 633.102  General.

    All communications relative to protests filed with the Government 
Accountability Office (GAO) shall be coordinated with the Office of the 
Legal Adviser.

[53 FR 26173, July 11, 1988, as amended at 64 FR 43628, Aug. 11, 1999; 
72 FR 45696, Aug. 15, 2007]



Sec. 633.103  Protests to the agency.

    (d)(4) The independent review as described in FAR 33.103(d)(4) shall 
be performed by the Departmental Competition Advocate.

[64 FR 43628, Aug. 11, 1999]



Sec. 633.104  Protests to GAO.

    (a) General procedures. The Office of the Assistant Legal Adviser 
for Buildings and Acquisitions (L/BA) coordinates the response of the 
Department of State to protests filed at the GAO. Contracting activities 
shall consult L/BA for guidance before taking any actions in response to 
a protest to GAO.

[64 FR 43628, Aug. 11, 1999]

                   Subpart 633.2_Disputes and Appeals



Sec. 633.203  Applicability.

    The Procurement Executive is the agency head for the purposes of FAR 
33.203(b).



Sec. 633.214-70  Alternative dispute resolution.

    (a) Policy. The Department's goal is to resolve contract disputes 
before the issuance of a contracting officer's final decision under the 
Contract Disputes Act. Contracting officers shall consider all possible 
means of reaching a negotiated settlement, consistent with the 
Government's best interests, before issuing a final decision on a 
contractor claim under the process outlined in FAR 33.206 through 
33.211.
    (b) When to use ADR--(1) Factors favoring ADR. Contracting officers 
should consider using ADR in those cases where:
    (i) Only facts are in dispute;
    (ii) The facts are clearly not favorable to the Government;
    (iii) The anticipated costs (in time and money) are less than the 
anticipated costs of litigation;
    (iv) Settlement attempts have reached an impasse;
    (v) ADR techniques have been used successfully in similar 
situations;
    (vi) There is a need for independent expert analysis; or,
    (vii) The claim has merit but its value is overstated.
    (2) Factors disfavoring ADR. The following circumstances do not 
favor use of ADR:
    (i) Cases involving disputes controlled by clear legal precedent, 
making compromise difficult;
    (ii) The resolution will have a significant impact on other pending 
cases or on the future conduct of Department business;
    (iii) The dispute is primarily over issues of law;
    (iv) A decision of precedential value is needed;
    (v) A significant policy question is involved;
    (vi) A full public record of the proceeding is important;

[[Page 355]]

    (vii) The outcome could significantly involve persons who are not 
parties to the contract;
    (viii) The costs of pursuing an ADR procedure (in time and money) 
exceed the cost of litigation;
    (ix) The nature of the case may cause ADR to be used merely for 
delay or discovery; or,
    (x) The case involves criminal violations.
    (3) Initial action. Immediately upon receipt of a claim, the 
contracting officer shall send a letter acknowledging receipt of the 
claim and soliciting the contractor's views on submitting this claim for 
ADR. In every dispute, the first step toward resolution shall be 
unassisted negotiations, in which the parties try to work out the 
disagreement among themselves. If this fails, before issuing a final 
decision, the contracting officer shall consult first with the head of 
the contracting activity, and contact the Office of the Legal Adviser 
and A/OPE to determine whether the disagreement appears susceptible to 
resolution by ADR. Consideration shall be given to pursuing additional 
fact-finding or designating a neutral expert in the disputed issue to 
provide an advisory opinion.
    (c) Methods of ADR. If the initial action to resolve the dispute 
fails, and the contracting officer issues a final decision which is 
appealed, ADR may still be feasible. The GSBCA issues a notice regarding 
ADR to all contractors who file appeals under the Contract Disputes Act. 
This notice describes the following ADR techniques, which contracting 
officers are urged to discuss with contractors at any time:
    (1) Settlement judge. A settlement judge is either an administrative 
judge or hearing examiner who is appointed by the parties in dispute for 
the purpose of facilitating settlement. The agenda is flexible and based 
on the specifics of the individual dispute. By holding a frank, in-depth 
discussion of the strengths and weaknesses of each party's position, the 
settlement judge may be able to foster a settlement of the dispute. The 
settlement judge may meet with the parties jointly or individually, and 
the settlement judge's recommendations are not binding. Typically, the 
settlement judge's opinions, based on his or her experience in handling 
prior disputes, will help the parties realize whether their arguments 
have merit or not.
    (2) Minitrial. A minitrial is not an actual trial but rather a 
flexible, expedited, but structured procedure in which each party 
presents an abbreviated version of its position both to a neutral 
advisor (who may be appointed by the GSBCA) and to principals of the 
parties who have full contractual authority to conclude a settlement. 
The parties mutually decide on the form of presentation without regard 
to traditional judicial proceedings or rules of evidence. An advance 
agreement by the parties specifies the procedure to be followed in 
making presentations, as well as the role of the neutral advisor. Upon 
conclusion of the presentations, settlement negotiations are conducted. 
The neutral advisor may assist the parties in negotiating settlement, 
including making non-binding recommendations.
    (3) Summary trial with binding decision. A summary trial with 
binding decision is a procedure in which the scheduling of an appeal is 
expedited and the parties try their appeal informally before an 
administrative judge or panel of judges. The length of the trial and the 
time for presentation and decision are tailored to the needs of the 
particular case. Trial procedures and rules applicable to appeals are 
modified or eliminated to expedite resolution of the appeal. The parties 
must agree, however, that all decisions, rulings, and orders by the 
judge(s) are final, conclusive, and not appealable, and may not be set 
aside, except for fraud. A summary ``bench'' decision is issued at the 
conclusion of the trial or a summary written decision will be issued 
within ten (10) days of either the trial's conclusion or receipt of a 
trial transcript.
    (4) Mediation. Mediation is a process in which a neutral and 
impartial third party assists the Government and the contractor in 
conflict to negotiate an acceptable settlement of contested issues. The 
mediator is jointly selected and is asked by the disputing parties to 
assist them to reach a voluntary agreement. The mediator has no 
decisionmaking authority and cannot impose a decision. Mediation 
assistance involves

[[Page 356]]

working with the parties to improve their communications, clarify or 
interpret data, identify key issues to be discussed, design an effective 
negotiation process, generate settlement options, or help to identify or 
formulate areas of agreement. Additional information on alternative 
dispute resolution and mediation resources is available at the following 
address on the Internet: http://www.adrr.com
    (5) Arbitration. Non-binding arbitration is a process in which a 
dispute is jointly submitted by the Government and a contractor to an 
impartial and neutral person or panel who provides a written, non-
binding opinion used as a guide for negotiations toward a settlement. 
Although the Administrative Dispute Resolution Act of 1990 (Pub. L. 101-
552) allows agencies to use binding arbitration, the law provides that 
the agency head may vacate any arbitration award within 30 days after it 
is served on all parties. For this reason, non-binding arbitration is 
preferable. Additional information on alternative dispute resolution and 
mediation resources is available at the following address on the 
Internet: http://www.adrr.com
    (6) Partnering. Partnering involves an agreement in principle to 
share the risks involved in completing a project, and to establish and 
promote a partnership environment. Partnering itself is not a 
contractual agreement and it does not create any legally enforceable 
rights, but instead partnering seeks to create a new cooperative 
attitude in completing Government contracts. The three basic steps in 
partnering are:
    (i) Establish the new relationship through personal contact among 
the principals for the Government and the contractor before the work 
begins;
    (ii) Prepare a joint statement of goals establishing common 
objectives in specific detail for reaching the goals; and,
    (iii) Identify specific dispute prevention processes designed to 
head off problems, evaluate performance, and promote cooperation. 
Additional information on alternative dispute resolution and mediation 
resources is available at the following address on the Internet: http://
www.adrr.com
    (d) ADR procedures. The ADR method shall be selected voluntarily by 
both the Government and the contractor. Both parties shall agree on the 
procedures to be followed, including the agenda and amount of time 
allowed for each party to present its case. The parties may choose not 
to have a written transcript or hearing on the record, as this might 
inhibit settlement. Also, the decision rendered, if any, should not be 
considered to establish any precedent for future litigation unless the 
parties agree otherwise. In cases where the parties agree to pay jointly 
for a third-party neutral advisor, it is recommended that the parties 
and the advisor agree on a fair and reasonable price. The Government 
would then issue a simplified acquisition (if the dollar amount does not 
exceed the simplified acquisition limitation) for 50% of the agreed 
price, and the advisor would submit separate invoices (each for 50% of 
the price) to the Government and the contractor.

[59 FR 66764, Dec. 28, 1994, as amended at 64 FR 43628, Aug. 11, 1999]



Sec. 633.270  Disputes and appeals under DOS contracts subject to the 

Contract Disputes Act of 1978.

[[Page 357]]

             SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING

                    PART 634_MAJOR SYSTEM ACQUISITION

Sec.

Sec. 634.003 Responsibilities.

Sec. 634.005 General requirements.

Sec. 634.005-6 Full production.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26175, July 11, 1988, unless otherwise noted.



Sec. 634.003  Responsibilities.

    (a) The Procurement Executive is the agency head's designee for the 
purposes of FAR 34.003(a).
    (b) The Under Secretary for Management is the agency head for the 
purposes of FAR 34.003(c) and the acquisition executive for the purposes 
of A-109.

[53 FR 26175, July 11, 1988, as amended at 59 FR 66766, Dec. 28, 1994; 
64 FR 43628, Aug. 11, 1999]



Sec. 634.005  General requirements.



Sec. 634.005-6  Full production.

    The Deputy Secretary is the agency head for the purposes of FAR 
34.005-6 with power of redelegation to the Under Secretary for 
Management.

[59 FR 66766, Dec. 28, 1994, as amended at 64 FR 43628, Aug. 11, 1999]

         PART 636_CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

                          Subpart 636.1_General

Sec.

Sec. 636.101 Applicability.

Sec. 636.101-70 Exception.

Sec. 636.104 Policy

Sec. 636.104-70 Foreign Service Buildings Act of 1926, as amended.

Sec. 636.104-71 Omnibus Diplomatic Security and Antiterrorism Act.

      Subpart 636.2_Special Aspects of Contracting for Construction


Sec. 636.202 Specifications.

Sec. 636.209 Construction contracts with architect-engineer firms.

                     Subpart 636.5_Contract Clauses


Sec. 636.513 Accident prevention.

Sec. 636.570 Additional DOSAR provisions.

                Subpart 636.6_Architect-Engineer Services


Sec. 636.602 Selection of firms for architect-engineer contracts.

Sec. 636.602-1 Selection criteria.

Sec. 636.602-5 Short selection processes for contracts not to exceed the 
          simplified acquisition threshold.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26175, July 11, 1988, unless otherwise noted.

                          Subpart 636.1_General



Sec. 636.101  Applicability.



Sec. 636.101-70  Exception.

    Contracts for overseas construction, including capital improvements, 
alterations, and major repairs, may be excepted where necessary from the 
provisions of the FAR (48 CFR Chapter 1) under the authority of section 
3 of the Foreign Service Buildings Act of 1926, as amended (22 U.S.C. 
294). The Director/Chief Operating Officer of the Bureau of Overseas 
Buildings Operations is authorized to approve such exceptions.

[69 FR 19337, Apr. 13, 2004]



Sec. 636.104  Policy.



Sec. 636.104-70  Foreign Service Buildings Act of 1926, as amended.

    (a) Policy. Section 11 of the Foreign Service Buildings Act of 1926, 
as amended (22 U.S.C. 302) limits competition for the construction, 
alteration, or repair of buildings or grounds abroad exceeding $5 
million to:
    (1) American-owned firms; or
    (2) Firms from countries which permit or agree to permit 
substantially equal access to American firms for comparable diplomatic 
and consular building projects.
    (b) Limitation. This participation may be permitted by or limited 
to:
    (1) Host-country firms where required by international agreement; or

[[Page 358]]

    (2) By the laws of the host country; or
    (3) Where determined by the Secretary of State to be necessary in 
the interest of bilateral relations or necessary to carry out the 
construction project.
    (c) Evaluation preference. For purposes of determining competitive 
status, American-owned firms shall receive a ten (10) percent price 
preference reduction, provided that two prospective responsible bidders/
offerors submit a bid/offer.

[69 FR 19337, Apr. 13, 2004]



Sec. 636.104-71  Omnibus Diplomatic Security and Antiterrorism Act.

    (a) Preference for United States contractors. The Omnibus Diplomatic 
Security and Antiterrorism Act of 1986 (Public Law 99-399; 22 U.S.C. 
4852) limits certain construction projects abroad to United States 
persons or qualified United States joint venture persons. The Omnibus 
Diplomatic Security and Antiterrorism Act of 1986 applies to the 
following, as determined by the Assistant Secretary for Diplomatic 
Security:
    (1) Diplomatic construction or design projects abroad exceeding $10 
million; or,
    (2) Diplomatic construction projects abroad at any dollar amount 
that involve technical security, unless the project involves low-level 
technology.
    (b) Exception. This preference shall not apply with respect to any 
diplomatic construction or design project in a foreign country whose 
statutes prohibit the use of United States contractors on such projects.
    (c) Subcontracting limitation. With respect to a diplomatic 
construction project, a prime contractor may not subcontract more than 
50 percent of the total value of the contract for that project.

[69 FR 19337, Apr. 13, 2004]

      Subpart 636.2_Special Aspects of Contracting for Construction



Sec. 636.202  Specifications.

    (d) The Director/Chief Operating Officer of the Bureau of Overseas 
Building Operations is the head of the agency for the purposes of FAR 
36.202(d)(3) and (4).

[69 FR 19337, Apr. 13, 2004]



Sec. 636.209  Construction contracts with architect-engineer firms.

    The Procurement Executive is the head of the agency for the purposes 
of FAR 36.209.

                     Subpart 636.5_Contract Clauses



Sec. 636.513  Accident prevention.

    (a) In accordance with a class deviation approved by the Procurement 
Executive, contracting officers at overseas contracting activities shall 
insert DOSAR 652.236-70, Accident Prevention, in lieu of FAR clause 
52.236-13 when awarding construction contracts. The contracting officer 
shall confer with OBO/OM/SHEM if there are any questions on any factors 
listed in paragraph (4) of the clause, or if the contracting officer has 
any questions regarding construction safety issues.

[64 FR 43628, Aug. 11, 1999, as amended at 69 FR 19337, Apr. 13, 2004]



Sec. 636.570  Additional DOSAR provisions.

    (a) The contracting officer shall insert the provision at 652.236-
71, Foreign Service Buildings Act, As Amended, in all contracts 
exceeding $5,000,000 for the construction, alteration, or repair of 
buildings and grounds overseas, unless:
    (1) An international agreement with or laws of the host country 
government permits or limits the participation to host-country firms; 
or,
    (2) The Secretary of State determines that it is necessary to the 
interest of bilateral relations or to carry out the project to either 
permit or limit the participation to host-country firms; or,
    (3) The provision at DOSAR 652.236-72 applies.
    (b) The contracting officer shall insert the provision at 652.236-
72, Statement of Qualifications for the Omnibus Diplomatic Security and 
Antiterrorism Act, in all diplomatic construction or design 
solicitations exceeding $10 million; or, diplomatic construction 
projects abroad at any dollar amount that involve technical security, 
unless

[[Page 359]]

the project involves low-level technology, as determined by the 
Assistant Secretary of Diplomatic Security.

[69 FR 19337, Apr. 13, 2004]

                Subpart 636.6_Architect-Engineer Services



Sec. 636.602  Selection of firms for architect-engineer contracts.



Sec. 636.602-1  Selection criteria.

    (b) The head of the contracting activity is the agency head's 
designee for the purpose of FAR 36.602-1(b).

[64 FR 43628, Aug. 11, 1999]



Sec. 636.602-5  Short selection processes for contracts not to exceed 

the simplified acquisition threshold.

    The short selection process described in FAR 36.602-5 is authorized 
for use for contracts not expected to exceed the simplified acquisition 
threshold.

[59 FR 66766, Dec. 28, 1994, as amended at 60 FR 39663, Aug. 3, 1995]

                      PART 637_SERVICE CONTRACTING

                 Subpart 637.1_Service Contracts_General

Sec.

Sec. 637.102 Policy.

Sec. 637.102-70 Special requirements for the acquisition of local guard 
          services overseas.

Sec. 637.103 Contracting officer responsibility.

Sec. 637.104 Personal services contracts.

Sec. 637.104-70 Personal services contracts.

Sec. 637.110 Solicitation provisions and contract clauses.

             Subpart 637.2_Advisory and Assistance Services


Sec. 637.204 Guidelines for determining availability of personnel.

               Subpart 637.6_Performance-Based Contracting


Sec. 637.601 General.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26176, July 11, 1988, unless otherwise noted.

                 Subpart 637.1_Service Contracts_General



Sec. 637.102  Policy.



Sec. 637.102-70  Special requirements for the acquisition of local guard 

services overseas.

    (a) Policy. Section 136 of the Foreign Relations Authorization Act, 
Fiscal Years 1990 and 1991 (22 U.S.C. 4864) encourages the participation 
of United States persons and qualified United States joint venture 
persons in local guard contracts overseas under diplomatic security 
programs.
    (b) Evaluation preference. For purposes of determining competitive 
status, proposals of United States persons and qualified United States 
joint venture persons shall receive a ten (10) percent price preference 
reduction.

[69 FR 19337, Apr. 13, 2004]



Sec. 637.103  Contracting officer responsibility.

    The Office of the Legal Adviser is the DOS legal counsel for the 
purposes of FAR 37.103(a)(2).



Sec. 637.104  Personal services contracts.

    The Office of the Legal Adviser is the DOS legal counsel for the 
purposes of FAR 37.104(e).



Sec. 637.104-70  Personal services contracts.

    Pursuant to FAR 37.104(b), DOS statutory authorities for personal 
services contracts are--
    (a) For the Department, section 2(c) of the State Department Basic 
Authorities Act of 1956, as amended (22 U.S.C. 2669);
    (b) For the Bureau of Population, Refugees, and Migration, section 
5(a)(6) of the Migration and Refugee Assistance Act of 1962, as amended 
(22 U.S.C. 2605);
    (c) For the Bureau for International Narcotics and Law Enforcement 
Affairs, section 636(a)(3) of the Foreign Assistance Act of 1961, as 
amended (22 U.S.C. 2396);
    (d) For the Foreign Service Institute, section 704(a)(4) of the 
Foreign Service Act of 1980, as amended (22 U.S.C. 4024);

[[Page 360]]

    (e) For the Office of Foreign Missions, section 208(d) of Title II--
Authorities Relating to the Regulation of Foreign Missions, of the State 
Department Basic Authorities Act of 1956, as amended (22 U.S.C. 4308);
    (f) For the Bureau of Overseas Buildings Operations, section 5 of 
the Foreign Service Buildings Act, 1926, as amended (22 U.S.C. 296);
    (g) For the U.S. Mission to the United Nations, section 7 of the 
United Nations Participation Act of 1945, as amended (22 U.S.C. 287e);
    (h) For the Bureau of International Organization Affairs, the 
separate State Department appropriations acts; and
    (i) For the Bureau of Diplomatic Security, section 206 of Public Law 
99-399, as amended by the Emergency Supplemental Appropriations Act of 
1998.

[53 FR 26176, July 11, 1988, as amended at 59 FR 66766, Dec. 28, 1994; 
60 FR 39663, Aug. 3, 1995; 64 FR 43629, Aug. 11, 1999; 69 FR 19337, Apr. 
13, 2004]



Sec. 637.110  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the clause at 652.237-70, 
Compensatory Time Off, in personal services contracts awarded in support 
of International Narcotics Control programs overseas, if the contracting 
officer determines its use appropriate.
    (b) The contracting officer shall insert the clause at 652.237-71, 
Identification/Building Pass, in all solicitations and contracts where 
contractor personnel require frequent and continuing access to 
Department of State facilities.
    (c) The contracting officer shall insert a clause substantially the 
same as the clause at 652.237-72, Observance of Legal Holidays and 
Administrative Leave, in all solicitations and contracts where 
contractor personnel will be working on-site in any Department of State 
facility. Overseas contracting activities may add local holidays to the 
list included in paragraph (a) of the clause.
    (d) The contracting officer shall insert the provision at 652.237-
73, Statement of Qualifications for Preference as a U.S. Person, in all 
overseas local guard solicitations.

[59 FR 66766, Dec. 28, 1994, as amended at 64 FR 43629, Aug. 11, 1999; 
69 FR 19337, Apr. 13, 2004]

             Subpart 637.2_Advisory and Assistance Services



Sec. 637.204  Guidelines for determining availability of personnel.

    The head of the contracting activity is the agency head for the 
purposes of FAR 37.204.

[64 FR 43629, Aug. 11, 1999]

               Subpart 637.6_Performance-Based Contracting



Sec. 637.601  General.

    It is the Department's policy that all new service contracts be 
performance-based, with clearly defined deliverables and performance 
standards. Any deviations from this policy shall be fully justified in 
writing and approved by the Departmental Competition Advocate.

[69 FR 19337, Apr. 13, 2004]

             PART 639_ACQUISITION OF INFORMATION TECHNOLOGY

Sec.

                          Subpart 639.1_General


Sec. 639.107 Contract clause.

Sec. 639.107-70 DOSAR solicitation provision and contract clause.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 72 FR 51569, Sept. 10, 2007, unless otherwise noted.

                          Subpart 639.1_General



Sec. 639.107  Contract clause.



Sec. 639.107-70  DOSAR solicitation provision and contract clause.

    (a) The contracting officer shall insert the provision at 652.239-
70, Information Technology Security Plan and Accreditation, in 
solicitations that include information technology resources or services 
in which the contractor will have physical or electronic

[[Page 361]]

access to Department information that directly supports the mission of 
the Department.
    (b) The contracting officer shall insert the clause at 652.239-71, 
Security Requirements for Unclassified Information Technology Resources, 
in solicitations and contracts containing the provision at 652.239-70. 
The provision and clause shall not be inserted in solicitations and 
contracts for personal services with individuals.

                PART 641_ACQUISITION OF UTILITY SERVICES

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 64 FR 43629, Aug. 11, 1999, unless otherwise noted.

                Subpart 641.2_Acquiring Utility Services



Sec. 641.201  Policy.

    (d) The Procurement Executive is the agency head for the purposes of 
FAR 41.201(d)(2)(i) and FAR 41.201(d)(3).

[[Page 362]]

                    SUBCHAPTER G_CONTRACT MANAGEMENT

           PART 642_CONTRACT ADMINISTRATION AND AUDIT SERVICES

             Subpart 642.2_Contract Administration Services

Sec.

Sec. 642.270 Contracting Officer's Representative (COR).

Sec. 642.271 Government Technical Monitor (GTM).

Sec. 642.272 DOSAR contract clauses.

       Subpart 642.6_Corporate Administration Contracting Officer


Sec. 642.602 Assignment and location.

                    Subpart 642.7_Indirect Cost Rates


Sec. 642.703 General.

Sec. 642.703-2 Certificate of indirect costs.

          Subpart 642.14_Traffic and Transportation Management


Sec. 642.1406-2 Contract clause.

Sec. 642.1406-2-70 DOSAR contract clauses.

            Subpart 642.15_Contractor Performance Information


Sec. 642.1503 Procedures.

Sec. 642.1503-70 Contractor Performance System (CPS).

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26176, July 11, 1988, unless otherwise noted.

             Subpart 642.2_Contract Administration Services



Sec. 642.270  Contracting Officer's Representative (COR).

    (a) Scope. Contracting officers may designate technically qualified 
personnel as their authorized representatives to assist in the 
administration of contracts. This section is mandatory for domestic 
contracting activities and recommended for overseas contracting 
activities.
    (b) Policy. It is Department policy that only Department of State 
employees who have completed adequate training and have the necessary 
experience and judgment shall be appointed as CORs. This policy shall be 
reinforced by contracting officers and administered jointly by A/OPE and 
FSI. Required training shall be funded by the COR's office.

[59 FR 66766, Dec. 28, 1994]



Sec. 642.271  Government Technical Monitor (GTM).

    (a) Policy. The contracting officer may appoint a Government 
Technical Monitor (GTM) to assist the Contracting Officer's 
Representative (COR) in monitoring a contractor's performance. The 
contracting officer may appoint a GTM because of physical proximity to 
the contractor's work site, or because of special skills or knowledge 
necessary for monitoring the contractor's work. The contracting officer 
may also appoint a GTM to represent the interests of another 
requirements office or post concerned with the contractor's work. A GTM 
shall be a direct-hire U.S. Government employee.

[69 FR 19338, Apr. 13, 2004]



Sec. 642.272  DOSAR contract clauses.

    (a) The contracting officer shall insert a clause substantially the 
same as the clause at 652.242-70, Contracting Officer's Representative, 
in solicitations and contracts when appointment of a contracting 
officer's representative is anticipated.
    (b) The contracting officer shall insert a clause substantially the 
same as the clause at 652.242-73, Authorization and Performance, in all 
solicitations and contracts to be awarded and/or performed overseas. For 
overseas local guard contracts, the contracting officer shall use the 
clause with its Alternate I.

[64 FR 43629, Aug. 11, 1999. Redesignated at 69 FR 19338, Apr. 13, 2004]

       Subpart 642.6_Corporate Administration Contracting Officer



Sec. 642.602  Assignment and location.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 42.602(a).

[[Page 363]]

                    Subpart 642.7_Indirect Cost Rates



Sec. 642.703  General.



Sec. 642.703-2  Certificate of indirect costs.

    (b) The head of the contracting activity is the agency head's 
designee for the purpose of FAR 42.703-2(b).

[64 FR 43629, Aug. 11, 1999]

          Subpart 642.14_Traffic and Transportation Management



Sec. 642.1406-2  Contract clause.



Sec. 642.1406-2-70  DOSAR contract clauses.

    (a) The contracting officer shall insert the clause at 652.242-71, 
Notice of Shipment, in solicitations and contracts entered into and 
performed outside the United States, when overseas shipment of supplies 
is required.
    (b) The contracting officer shall insert the clause at 652.242-72, 
Shipping Instructions, in solicitations and contracts with a source in 
the United States and overseas shipment of supplies is required.

            Subpart 642.15_Contractor Performance Information



Sec. 642.1503  Procedures.



Sec. 642.1503-70  Contractor Performance System (CPS).

    (a) The Department of State subscribes to the Contractor Performance 
System (CPS) maintained by the National Institutes of Health. CPS is an 
Internet-based tool allowing contracting officers to input past 
performance information and view past performance information input by 
other contracting officers in other locations and agencies.
    (b) All DOS contracting officers with access to the Internet shall 
use CPS to evaluate contractor's past performance for all contracts 
exceeding $100,000, including options. Contracting officers shall also 
use the CPS to evaluate the past performance of offerors on all 
competitive negotiated acquisitions exceeding $100,000, including 
options, unless the contracting officer documents in the contract file 
why past performance is not an appropriate evaluation factor. The CPS 
may also be used for evaluating acquisitions not exceeding $100,000 to 
conform to the general principle of considering past performance in all 
acquisitions.
    (c) Form DS-1771, Contractor Past Performance Evaluation, shall be 
used only:
    (1) When the CPS is temporarily unavailable. When the CPS becomes 
available, data from any DS-1771 created in the interim shall be 
promptly entered into the CPS; or
    (2) At overseas locations where access to the Internet is not 
practicable.
    (d) Heads of contracting activities shall send a list of the names, 
work addresses, and phone numbers of all acquisition personnel whom they 
wish to have access to the CPS to A/LM/AQM.

[69 FR 19338, Apr. 13, 2004]

                     PART 643_CONTRACT MODIFICATIONS

                          Subpart 643.1_General

Sec.

Sec. 643.102 Policy.

Sec. 643.102-70 Contract compliance and review.

Sec. 643.104 Notification of contract changes.

Sec. 643.104-70 DOSAR contract clause.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26176, July 11, 1988, unless otherwise noted.

                          Subpart 643.1_General



Sec. 643.102  Policy.



Sec. 643.102-70  Contract compliance and review.

    When applicable, the contracting officer shall ensure the proposed 
contract modification complies with the competition requirements of FAR 
Part 6 and DOSAR Part 606.

[53 FR 26176, July 11, 1988, as amended at 59 FR 66767, Dec. 28, 1994; 
64 FR 43629, Aug. 11, 1999]



Sec. 643.104  Notification of contract changes.



Sec. 643.104-70  DOSAR contract clause.

    The contracting officer shall insert the clause at 652.243-70, 
Notices, in all solicitations and contracts exceeding

[[Page 364]]

the micro-purchase threshold which are awarded and/or performed 
overseas.

[64 FR 43629, Aug. 11, 1999]

             PART 644_SUBCONTRACTING POLICIES AND PROCEDURES

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 64 FR 43629, Aug. 11, 1999, unless otherwise noted.

          Subpart 644.3_Contractor's Purchasing System Reviews



Sec. 644.302  Requirements.

    (a) The Procurement Executive is the head of the agency for the 
purpose of FAR 44.302(a).

                      PART 645_GOVERNMENT PROPERTY

       Subpart 645.3_Providing Government Property to Contractors

Sec.

Sec. 645.302 Providing facilities.

Sec. 645.302-1 Policy.

     Subpart 645.4_Contractor Use and Rental of Government Property


Sec. 645.403 Rental--Use and Charges clause.

  Subpart 645.6_Reporting, Redistribution, and Disposal of Contractor 
                                Inventory


Sec. 645.608 Screening of contractor inventory.

Sec. 645.608-6 Waiver of screening requirements.

Sec. 645.610 Sale of surplus contractor inventory.

Sec. 645.610-2 Exemptions from sale by GSA.

    Authority: 22 U.S.C. 2658; 40 U.S.C. 486(c); 48 CFR Subpart 1.3.

    Source: 53 FR 26177, July 11, 1988, unless otherwise noted.

       Subpart 645.3_Providing Government Property to Contractors



Sec. 645.302  Providing facilities.



Sec. 645.302-1  Policy.

    The authority to make the determination prescribed in FAR 45.302-
1(a)(4) is delegated, without power of redelegation, to the head of the 
contracting activity (see 601.603-70).

     Subpart 645.4_Contractor Use and Rental of Government Property



Sec. 645.403  Rental--Use and Charges clause.

    (a) The head of the contracting activity is the agency head's 
designee for the purpose of FAR 45.403(a).

[64 FR 43629, Aug. 11, 1999]

  Subpart 645.6_Reporting, Redistribution, and Disposal of Contractor 
                                Inventory



Sec. 645.608  Screening of contractor inventory.



Sec. 645.608-6  Waiver of screening requirements.

    The Procurement Executive is the agency head's designee for the 
purposes of FAR 45.608-6.



Sec. 645.610  Sale of surplus contractor inventory.



Sec. 645.610-2  Exemptions from sale by GSA.

    The Procurement Executive is the agency head for the purposes of FAR 
45.610-2(a).

                         PART 647_TRANSPORTATION

Sec.

Sec. 647.000 Scope of part.

Subpart 647.2_Contracts for Transportation or for Transportation-Related 
                                Services


Sec. 647.207 Solicitation provisions, contract clauses, and special 
          requirements.

Sec. 647.207-7 Liability and insurance.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 59 FR 66767, Dec. 28, 1994, unless otherwise noted.



Sec. 647.000  Scope of part.

    The FAR and DOSAR do not apply to the acquisition of transportation 
services via Government bill of lading (GBL) or other similar forms.

[[Page 365]]

Subpart 647.2_Contracts for Transportation or for Transportation-Related 
                                Services



Sec. 647.207  Solicitation provisions, contract clauses, and special 

requirements.



Sec. 647.207-7  Liability and insurance.

    (e) The Procurement Executive has approved a class deviation for 
paragraph (c) of FAR clause 52.247-23, Contractor Liability for Loss of 
and/or Damage to Household Goods. The contracting officer shall indicate 
that the contractor shall indemnify the owner of the goods at a rate of 
$5.00 per pound (or metric equivalent in local currency) based on the 
total net weight. The rate conforms with liability calculations found in 
International Through Government Bills of Lading (ITGBL).

[64 FR 43629, Aug. 11, 1999]

                       PART 648_VALUE ENGINEERING

    Authority: 22 U.S.C. 2658; 40 U.S.C. 486(c); 48 CFR 1.3.

                  Subpart 648.1_Policies and Procedures



Sec. 648.102  Policies.

    (a) The authority to grant exemptions prescribed in FAR 48.102(a), 
or to extend future contract savings or sharing pursuant to FAR 
48.102(g), is delegated, without power of redelegation, to the head of 
the contracting activity (see 601.603-70).

[55 FR 5775, Feb. 16, 1990]

                     Subpart 648.2_Contract Clauses



Sec. 648.201  Clauses for supply or service contracts.

    The authority to determine exemptions prescribed in FAR 48.201(a)(6) 
is delegated, without power of redelegation, to the head of the 
contracting activity.

[55 FR 5775, Feb. 16, 1990]

                    PART 649_TERMINATION OF CONTRACTS

    Authority: 40 U.S.C. 485(c); 22 U.S.C. 2658.

    Source: 59 FR 66767, Dec. 28, 1994, unless otherwise noted.

                    Subpart 649.1_General Principles.



Sec. 649.106  Fraud or other criminal conduct.

    If the Termination Contracting Officer (TCO) suspects fraud or other 
criminal conduct related to the settlement of a terminated contract, the 
TCO shall discontinue negotiations and report the facts to the Office of 
the Inspector General.

            PART 651_USE OF GOVERNMENT SOURCES BY CONTRACTORS

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

   Subpart 651.70_Contractor Use of Travel Advances, Official Travel 
               Orders, and Government Travel Requisitions



Sec. 651.701  Policy.

    (a) It is the Department's policy that contractors shall not:
    (1) Receive travel advances from the Department for contract-related 
travel;
    (2) Travel under official travel orders; or,
    (3) Receive Government Travel Requisitions (GTRs) for 
transportation.
    (b) All contract-related travel shall be performed on the 
contractor's account with reimbursement provided after submission of a 
proper voucher.
    (c) This policy does not apply to personal services contractor; 
provided, that such contractors are paid through the Department's 
payroll system and they are subject to the standard payroll deductions 
of Federal Withholding Tax and FICA.

[59 FR 66767, Dec. 28, 1994, as amended at 69 FR 19338, Apr. 13, 2004]

[[Page 366]]

                     SUBCHAPTER H_CLAUSES AND FORMS

          PART 652_SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Sec.

Sec. 652.000 Scope of part.

       Subpart 652.1_Instructions for Using Provisions and Clauses


Sec. 652.100 Scope of subpart.

Sec. 652.100-70 Policy.

Sec. 652.102 Incorporating provisions and clauses.

Sec. 652.102-1 Incorporation by reference.

              Subpart 652.2_Texts of Provisions and Clauses


Sec. 652.200 Scope of subpart.

Sec. 652.206-70 Competition Advocate/Ombudsman.

Sec. 652.216-70 Ordering--Indefinite-Delivery Contract.

Sec. 652.216-71 Price Adjustment.

Sec. 652.219-70 Department of State Subcontracting Goals.

Sec. 652.219-71 Section 8(a) Direct Awards.

Sec. 652.219-72 Department of State Mentor-Prot[eacute]g[eacute] 
          Program.

Sec. 652.219-73 Mentor Requirements and Evaluation.

Sec. 652.225-70 Arab League Boycott of Israel.

Sec. 652.225-71 Section 8(a) of the Export Administration Act of 1979, 
          as Amended.

Sec. 652.228-70 Defense Base Act--Covered Contractor Employees.

Sec. 652.228-71 Worker's Compensation Insurance (Defense Base Act)--
          Services.

Sec. 652.228-72--652.228-73 [Reserved]

Sec. 652.228-74 Defense Base Act insurance rates--Limitation.

Sec. 652.229-70 Excise Tax Exemption Statement for Contractors Within 
          the United States.

Sec. 652.229-71 Personal Property Disposition at Posts Abroad.

Sec. 652.232-70 Payment Schedule and Invoice Submission (Fixed-Price).

Sec. 652.232-71 Voucher Submission (Cost-Reimbursement).

Sec. 652.232-72 Limitation of Funds.

Sec. 652.236-70 Accident Prevention.

Sec. 652.236-71 Foreign Service Buildings Act, as Amended

Sec. 652.236-72 Statement of Qualifications for the Omnibus Diplomatic 
          Security and Antiterrorism Act.

Sec. 652.237-70 Compensatory time off.

Sec. 652.237-71 Identification/Building Pass.

Sec. 652.237-72 Observance of Legal Holidays and Administrative Leave.

Sec. 652.237-73 Statement of Qualifications for Preference as a U.S. 
          Person.

Sec. 652.239-70 Information Technology Security Plan and Accreditation.

Sec. 652.239-71 Security Requirements for Unclassified Information 
          Technology Resources.

Sec. 652.242-70 Contracting Officer's Representative (COR).

Sec. 652.242-71 Notice of Shipments.

Sec. 652.242-72 Shipping Instructions.

Sec. 652.242-73 Authorization and Performance.

Sec. 652.243-70 Notices.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26177, July 11, 1988, unless otherwise noted.



Sec. 652.000  Scope of part.

    This part sets forth solicitation provisions and contract clauses, 
in addition to those prescribed in FAR Part 52, for use in DOS 
acquisitions.

       Subpart 652.1_Instructions for Using Provisions and Clauses



Sec. 652.100  Scope of subpart.



Sec. 652.100-70  Policy.

    (a) The solicitation provisions and contract clauses in FAR Subpart 
52.2 or this Subpart 652.2 shall be used as prescribed therein, except 
when the use of any provision or clause is prohibited by or inconsistent 
with local laws, or the supplies or services could not be obtained if 
the provision or clause were to be included.
    (b) The contracting officer shall justify the exclusion of any 
provisions or clauses in accordance with FAR Subpart 1.4 and 601.470.



Sec. 652.102  Incorporating provisions and clauses.



Sec. 652.102-1  Incorporation by reference.

    The Procurement Executive is the agency head for the purposes of FAR 
52.102-1(a)(2)(ii).

[[Page 367]]

              Subpart 652.2_Texts of Provisions and Clauses



Sec. 652.200  Scope of subpart.

    This subpart sets forth the text of all DOSAR provisions and 
clauses, and for each provision and clause provides a cross-reference to 
the location in the DOSAR that prescribes its use.



Sec. 652.206-70  Competition Advocate/Ombudsman.

    As prescribed in 606.570, insert the following provision:

                Competition Advocate/Ombudsman (AUG 1999)

    (a) The Department of State's Competition Advocate is responsible 
for assisting industry in removing restrictive requirements from 
Department of State solicitations and removing barriers to full and open 
competition and use of commercial items. If such a solicitation is 
considered competitively restrictive or does not appear properly 
conducive to competition and commercial practices, potential offerors 
are encouraged to first contact the contracting officer for the 
respective solicitation. If concerns remain unresolved, contact the 
Department of State Competition Advocate on (703) 516-1680, by fax at 
(703) 875-6155, or write to: Department of State, Competition Advocate, 
Office of the Procurement Executive (A/OPE), Suite 603, SA-6, 
Washington, DC 20522-0602.
    (b) The Department of State's Acquisition Ombudsman has been 
appointed to hear concerns from potential offerors and contractors 
during the preaward and postaward phases of this acquisition. The role 
of the ombudsman is not to diminish the authority of the contracting 
officer, the Technical Evaluation Panel or Source Evaluation Board, or 
the selection official. The purpose of the ombudsman is to facilitate 
the communication of concerns, issues, disagreements, and 
recommendations of interested parties to the appropriate Government 
personnel, and work to resolve them. When requested and appropriate, the 
ombudsman will maintain strict confidentiality as to the source of the 
concern. The ombudsman does not participate in the evaluation of 
proposals, the source selection process, or the adjudication of formal 
contract disputes. Interested parties are invited to contact the 
contracting activity ombudsman, [insert name], at [insert telephone and 
fax numbers]. For an American Embassy or overseas post, refer to the 
numbers below for the Department Acquisition Ombudsman. Concerns, 
issues, disagreements, and recommendations which cannot be resolved at a 
contracting activity level may be referred to the Department of State 
Acquisition Ombudsman at (703) 516-1680, by fax at (703) 875-6155, or 
write to: Department of State, Acquisition Ombudsman, Office of the 
Procurement Executive (A/OPE), Suite 603, SA-6, Washington, DC 20522-
0602.

                           (End of provision)

[64 FR 43629, Aug. 11, 1999]



Sec. 652.216-70  Ordering--Indefinite-Delivery Contract.

    As prescribed in 616.506-70, insert the following clause:

           Ordering--Indefinite-Delivery Contracts (APR 2004)

    The Government shall use one of the following forms to issue orders 
under this contract:
    (a) The Optional Form 347, Order for Supplies or Services, and 
Optional Form 348, Order for Supplies or Services Schedule--
Continuation; or,
    (b) The DS-2076, Purchase Order, Receiving Report and Voucher, and 
DS-2077, Continuation Sheet.

                             (End of clause)

[53 FR 26177, July 11, 1988, as amended at 59 FR 66768, Dec. 28, 1994; 
64 FR 43630, Aug. 11, 1999; 69 FR 19338, Apr. 13, 2004]



Sec. 652.216-71  Price Adjustment.

    As prescribed in 616.203-4, insert a clause substantially the same 
as follows:

                       Price Adjustment (AUG 1999)

    (a) The contract price may be increased or decreased in actual costs 
of direct service labor which result directly from laws enacted and 
effective during the term of this contract by the [insert name of 
country] Government. Direct service labor costs include only the costs 
of wages and direct benefits (such as social security, health insurance, 
unemployment compensation insurance) paid to or incurred for the direct 
benefit of personnel performing services under one of the categories 
listed in Section [identify section number] of this contract. Price 
adjustments will include only changes in direct service labor costs 
incurred in order to comply with the requirements of the law. No 
adjustment will be made under this clause with respect to labor costs of 
personnel not performing direct service labor under the categories of 
Section [identify section], nor for overhead, profit, general and 
administrative (G&A) costs, taxes or any other costs whatsoever.

[[Page 368]]

    (b) For the contracting officer to consider any request for 
adjustment, the contractor shall demonstrate in writing:
    (1) That the change in the law occurred during the term of this 
contract and subsequent to the award date of this contract; and,
    (2) That the change in the law could not have been reasonably 
anticipated prior to contract award; and,
    (3) How the change in the law directly affects the contractor's 
costs under this contract.
    (c) The contractor shall present data that clearly supports any 
request for adjustment. This data shall be submitted no later than 30 
calendar days after the changes in the law have been made public. This 
data shall include, but not be limited to, the following:
    (1) The calculation of the amount of adjustment requested; and,
    (2) Documentation which identifies and provides the appropriate 
portions of the text of the particular law from which the request is 
derived.
    (d) In order to establish the change between the requested adjusted 
rate and the original rate, the contractor shall support the appropriate 
data and composition of the original rate and the requested adjusted 
rate. This shall include details regarding specific hourly rates paid to 
individual employees. For contracts paid in U.S. dollars, the 
contractor's request for price adjustment shall present data reflecting:
    (1) The exchange rate in effect on the date of the contractor's 
proposal that was accepted for the basic contract; and
    (2) The current exchange rate and its effect on payment of workers 
in local currency. The allowable adjustment shall be limited to the 
extent to which increases in direct service labor costs due to host 
country law changes are not offset by exchange rate gains.
    (e) Only direct cost changes mandated by enacted laws shall be 
considered for adjustment under this contract. Changes for purposes of 
maintaining parity of pay between employees at the minimum mandated 
levels and employees already paid at levels above the newly mandated 
minimums shall not be considered. Therefore, if the contractor elects to 
increase payments to employees who are already being paid at or above 
the mandated amounts, such increased costs shall be borne solely by the 
contractor and shall not be justification for an increase in the hourly 
and monthly rates under this contract.
    (f) Any request for adjustment shall be presented by signature of an 
officer or general partner of the contractor having overall 
responsibility for the conduct of the contractor's affairs.
    (g) No adjustment shall be made to the contract price that relates 
to any indirect, overhead, or fixed costs, profit or fee. Only the 
changes in direct service labor wages (and any benefits based directly 
on wages) shall be considered by the U.S. Government as basis for 
contract price changes.
    (h) No request by the contractor for an adjustment under this clause 
shall be allowed if asserted after final payment has been made under 
this contract.
    (i) This clause shall only apply to laws enacted by the [insert name 
of country] Government meeting the criterion set forth above in 
paragraph (b). No adjustments shall be made due to currency fluctuations 
in exchange rates.

                             (End of clause)

[64 FR 43630, Aug. 11, 1999]



Sec. 652.219-70  Department of State Subcontracting Goals.

    As prescribed in 619.708-70, insert a provision substantially the 
same as follows:

           Department of State Subcontracting Goals (APR 2004)

    (a) The offeror shall provide a Small, Small Disadvantaged, Woman-
Owned Small, HUBZone Small, and Service-Disabled Veteran-Owned Small 
Enterprise Subcontracting Plan that details its approach to selecting 
and using Small, Small Disadvantaged, Woman-Owned Small, HUBZone Small, 
and Service-Disabled Veteran-Owned Small Business Enterprises.
    (b) For the fiscal year [insert appropriate fiscal year], the 
Department's subcontracting goals are as follows:

Sec. (1) Goal for subcontracting to SB: ----------------

Sec. (2) Goal for subcontracting to SDB: ----------------

Sec. (3) Goal for subcontracting to SWB: ----------------

Sec. (4) Goal for subcontracting to HUBZone Firms: ----------------

Sec. (5) Goal for subcontracting to SDVO: ----------------

Sec. (6) Omnibus goals (if applicable): ----------------
    (i) 10% to minority business
    (ii) 10% to small business

                           (End of provision)

[69 FR 19338, Apr. 13, 2004]



Sec. 652.219-71  Section 8(a) Direct Awards.

    As prescribed in 619.811-3(f), insert the following clause:

[[Page 369]]

                  Section 8(a) Direct Awards (AUG 1999)

    (a) This purchase order or contract is issued as a direct award 
between the contracting activity and the 8(a) contractor pursuant to the 
Memorandum of Understanding between the Small Business Administration 
(SBA) and the Department of State (DOS). SBA retains responsibility for 
8(a) certification, 8(a) eligibility determinations and related issues, 
and provides counseling and assistance to the 8(a) contractor under the 
8(a) program. The cognizant SBA district office is: [To be completed by 
the contracting officer at the time of award]
    (b) The DOS contracting officer is responsible for administering the 
purchase order or contract and taking any action on behalf of the 
Government under the terms and conditions of the purchase order or 
contract. However, the DOS contracting officer shall give advance notice 
to the SBA before it issues a final notice terminating performance, 
either in whole or in part, under the purchase order or contract. The 
DOS contracting officer shall also coordinate with SBA prior to 
processing any novation agreement. The DOS contracting officer may 
assign contract administration functions to a contract administration 
office.
    (c) The contractor agrees:
    (1) to notify the DOS contracting officer, simultaneous with its 
notification to SBA (as required by SBA's 8(a) regulations), when the 
owner or owners upon whom 8(a) eligibility is based, plan to relinquish 
ownership or control of the concern. Consistent with 15 U.S.C. 
637(a)(21), transfer of ownership or control shall result in termination 
of the contract for convenience, unless SBA waives the requirement for 
termination prior to the actual relinquishing of ownership and control; 
and,
    (2) to adhere to the requirements of FAR 52.219-14, Limitations on 
Subcontracting.

                             (End of clause)

[64 FR 43630, Aug. 11, 1999]



Sec. 652.219-72  Department of State Mentor-Prot[eacute]g[eacute] 

Program.

    As prescribed in 619.202-70(o)(1), insert the following provision:

   Department of State Mentor-Prot[eacute]g[eacute] Program (APR 2004)

    (a) Large and small businesses are encouraged to participate in the 
Department of State Mentor-Prot[eacute]g[eacute] Program. Mentor firms 
provide eligible small business prot[eacute]g[eacute]s with 
developmental assistance to enhance their business capabilities and 
ability to obtain Federal contracts.
    (b) Mentor firms are large prime contractors or eligible small 
businesses capable of providing developmental assistance. 
Prot[eacute]g[eacute] firms are small businesses, as defined in 13 CFR 
parts 121, 124, and 126.
    (c) Developmental assistance is technical, managerial, financial, 
and other mutually beneficial assistance that aids 
prot[eacute]g[eacute]s. Firms interested in participating in the program 
are encouraged to contact the Department of State OSDBU for further 
information.

                           (End of provision)

[69 FR 19338, Apr. 13, 2004]



Sec. 652.219-73  Mentor Requirements and Evaluation.

    As prescribed in 619.202-70(o)(2), insert the following clause:

              Mentor Requirements and Evaluation (APR 2004)

    (a) Mentor and prot[eacute]g[eacute] firms shall submit an 
evaluation to the Department of State's OSDBU at the conclusion of the 
mutually agreed upon program period, the conclusion of the contract, or 
the voluntary withdrawal by either party from the program, whichever 
occurs first. At the conclusion of each year in the mentor-
prot[eacute]g[eacute] program, the prime contractor and 
prot[eacute]g[eacute] will formally brief the Department of State 
Mentor-Prot[eacute]g[eacute] Program Manager regarding program 
accomplishments under their mentor-prot[eacute]g[eacute] agreement.
    (b) A mentor or prot[eacute]g[eacute] shall notify the OSDBU and the 
contracting officer, in writing, at least 30 calendar days in advance of 
the effective date of the firm's withdrawal from the program. A mentor 
firm shall notify the OSDBU and the contracting officer upon receipt of 
a prot[eacute]g[eacute]'s notice of withdrawal from the program.

                             (End of clause)

[69 FR 19338, Apr. 13, 2004]



Sec. 652.225-70  Arab League Boycott of Israel.

    As prescribed in 625.7002(a), insert the following provision:

                Arab League Boycott of Israel (AUG 1999)

    (a) Definitions. As used in this provision:
    Foreign person means any person other than a United States person as 
defined below.
    United States person means any United States resident or national 
(other than an individual resident outside the United States and 
employed by other than a United States person), any domestic concern 
(including any permanent domestic establishment of

[[Page 370]]

any foreign concern), and any foreign subsidiary or affiliate (including 
any permanent foreign establishment) of any domestic concern which is 
controlled in fact by such domestic concern, as provided under the 
Export Administration Act of 1979, as amended.
    (b) Certification. By submitting this offer, the offeror certifies 
that it is not:
    (1) Taking or knowingly agreeing to take any action, with respect to 
the boycott of Israel by Arab League countries, which Section 8(a) of 
the Export Administration Act of 1979, as amended (50 U.S.C. 2407(a)) 
prohibits a United States person from taking; or,
    (2) Discriminating in the award of subcontracts on the basis of 
religion.

                           (End of provision)

[64 FR 43631, Aug. 11, 1999]



Sec. 652.225-71  Section 8(a) of the Export Administration Act of 1979, 

as Amended.

    As prescribed in 625.7002(b), insert the following clause:

 Section 8(a) of the Export Administration Act of 1979, as Amended (AUG 
                                  1999)

    (a) Section 8(a) of the U.S. Export Administration Act of 1979, as 
amended (50 U.S.C. 2407(a)), prohibits compliance by U.S. persons with 
any boycott fostered by a foreign country against a country which is 
friendly to the United States and which is not itself the object of any 
form of boycott pursuant to United States law or regulation. The Boycott 
of Israel by Arab League countries is such a boycott, and therefore, the 
following actions, if taken with intent to comply with, further, or 
support the Arab League Boycott of Israel, are prohibited activities 
under the Export Administration Act:
    (1) Refusing, or requiring any U.S. person to refuse to do business 
with or in Israel, with any Israeli business concern, or with any 
national or resident of Israel, or with any other person, pursuant to an 
agreement of, or a request from or on behalf of a boycotting country;
    (2) Refusing, or requiring any U.S. person to refuse to employ or 
otherwise discriminating against any person on the basis of race, 
religion, sex, or national origin of that person or of any owner, 
officer, director, or employee of such person;
    (3) Furnishing information with respect to the race, religion, or 
national origin of any U.S. person or of any owner, officer, director, 
or employee of such U.S. person;
    (4) Furnishing information about whether any person has, has had, or 
proposes to have any business relationship (including a relationship by 
way of sale, purchase, legal or commercial representation, shipping or 
other transport, insurance, investment, or supply) with or in the State 
of Israel, with any business concern organized under the laws of the 
State of Israel, with any Israeli national or resident, or with any 
person which is known or believed to be restricted from having any 
business relationship with or in Israel;
    (5) Furnishing information about whether any person is a member of, 
has made contributions to, or is otherwise associated with or involved 
in the activities of any charitable or fraternal organization which 
supports the State of Israel; and,
    (6) Paying, honoring, confirming, or otherwise implementing a letter 
of credit which contains any condition or requirement against doing 
business with the State of Israel.
    (b) Under Section 8(a), the following types of activities are not 
forbidden ``compliance with the boycott,'' and are therefore exempted 
from Section 8(a)'s prohibitions listed in paragraphs (a)(1)-(6) above:
    (1) Complying or agreeing to comply with requirements:
    (i) Prohibiting the import of goods or services from Israel or goods 
produced or services provided by any business concern organized under 
the laws of Israel or by nationals or residents of Israel; or,
    (ii) Prohibiting the shipment of goods to Israel on a carrier of 
Israel, or by a route other than that prescribed by the boycotting 
country or the recipient of the shipment;
    (2) Complying or agreeing to comply with import and shipping 
document requirements with respect to the country of origin, the name of 
the carrier and route of shipment, the name of the supplier of the 
shipment or the name of the provider of other services, except that no 
information knowingly furnished or conveyed in response to such 
requirements may be stated in negative, blacklisting, or similar 
exclusionary terms, other than with respect to carriers or route of 
shipments as may be permitted by such regulations in order to comply 
with precautionary requirements protecting against war risks and 
confiscation;
    (3) Complying or agreeing to comply in the normal course of business 
with the unilateral and specific selection by a boycotting country, or 
national or resident thereof, of carriers, insurance, suppliers of 
services to be performed within the boycotting country or specific goods 
which, in the normal course of business, are identifiable by source when 
imported into the boycotting country;
    (4) Complying or agreeing to comply with the export requirements of 
the boycotting country relating to shipments or transshipments of 
exports to Israel, to any business concern of or organized under the 
laws of Israel, or to any national or resident of Israel;
    (5) Compliance by an individual or agreement by an individual to 
comply with the

[[Page 371]]

immigration or passport requirements of any country with respect to such 
individual or any member of such individual's family or with requests 
for information regarding requirements of employment of such individual 
within the boycotting country; and,
    (6) Compliance by a U.S. person resident in a foreign country or 
agreement by such person to comply with the laws of that country with 
respect to his or her activities exclusively therein, and such 
regulations may contain exceptions for such resident complying with the 
laws or regulations of that foreign country governing imports into such 
country of trademarked, trade named, or similarly specifically 
identifiable products, or components of products for his or her own use, 
including the performance of contractual services within that country, 
as may be defined by such regulations.

                             (End of clause)

[64 FR 43631, Aug. 11, 1999]



Sec. 652.228-70  Defense Base Act--Covered Contractor Employees.

    As prescribed in 628.309-70(a), insert the following provision:

        Defense Base Act--Covered Contractor Employees (JUN 2006)

    (a) Bidders/offerors shall indicate below whether or not any of the 
following categories of employees will be employed on the resultant 
contract, and, if so, the number of such employees:

----------------------------------------------------------------------------------------------------------------
              Category                               Yes/No                                Number
----------------------------------------------------------------------------------------------------------------
(1) United States citizens or
 residents
(2) Individuals hired in the United
 States, regardless of citizenship
(3) Local nationals or third         .....................................  Local nationals:
 country nationals where contract                                           --------------------
 performance takes place in a                                               Third country nationals:
 country where there are no local                                           --------------------
 workers' compensation laws.
(4) Local nationals or third         .....................................  Local nationals:
 country nationals where contract                                           --------------------
 performance takes place in a                                               Third country nationals:
 country where there are local                                              --------------------
 workers' compensation laws.
----------------------------------------------------------------------------------------------------------------

    (b) The contracting officer has determined that for performance in 
the country of [contracting officer insert country of performance and 
check the appropriate block below]
    [squ] Workers' compensation laws exist that will cover local 
nationals and third country nationals.
    [squ] Workers' compensation laws do not exist that will cover local 
nationals and third country nationals.
    (c) If the bidder/offeror has indicated ``yes'' in block (a)(4) of 
this provision, the bidder/offeror shall not purchase Defense Base Act 
insurance for those employees. However, the bidder/offeror shall assume 
liability toward the employees and their beneficiaries for war-hazard 
injury, death, capture, or detention, in accordance with the clause at 
FAR 52.228-4.
    (d) If the bidder/offeror has indicated ``yes'' in blocks (a)(1), 
(2), or (3) of this provision, the bidder/offeror shall compute Defense 
Base Act insurance costs covering those employees pursuant to the terms 
of the contract between the Department of State and the Department's 
Defense Base Act insurance carrier at the rates specified in DOSAR 
652.228-74, Defense Base Act Insurance Rates--Limitation. If DOSAR 
provision 652.228-74 is not included in this solicitation, the bidder/
offeror shall notify the contracting officer before the closing date so 
that the solicitation can be amended accordingly.

                           (End of provision)

[71 FR 34841, June 16, 2006; 71 FR 41177, July 20, 2006]



Sec. 652.228-71  Worker's Compensation Insurance (Defense Base Act)--

Services.

    As prescribed in 628.309-70(b), insert the following clause:

 Workers' Compensation Insurance (Defense Base Act)--Services (JUN 2006)

    (a) This clause supplements FAR 52.228-3. For the purposes of this 
clause, ``covered contractor employees'' includes the following 
individuals:
    (1) United States citizens or residents;
    (2) Individuals hired in the United States or its possessions, 
regardless of citizenship; and
    (3) Local nationals and third country nationals where contract 
performance takes place in a country where there are no local workers' 
compensation laws.
    (b) The Contractor shall procure Defense Base Act (DBA) insurance 
pursuant to the

[[Page 372]]

terms of the contract between the Department of State and the 
Department's DBA insurance carrier for covered contractor employees, 
unless the Contractor has a DBA self-insurance program approved by the 
Department of Labor. The Contractor shall submit a copy of the 
Department of Labor's approval to the contracting officer upon contract 
award, if applicable.
    (c) The current rate under the Department of State contract is 
[contracting officer insert rate] of compensation for services.
    (d) The Contractor shall insert a clause substantially the same as 
this in all subcontracts. The Contractor shall require that 
subcontractors insert a similar clause in any of their subcontracts.
    (e) Should the rates for DBA insurance coverage increase or decrease 
during the performance of this contract, the contracting officer shall 
modify this contract accordingly.
    (f) The Contractor shall demonstrate to the satisfaction of the 
contracting officer that the equitable adjustment as a result of the 
insurance increase or decrease does not include any reserve for such 
insurance. Adjustment shall not include any overhead, profit, general 
and administrative expenses, etc.
    (g)(1) Section 16 of the State Department Basic Authorities Act (22 
U.S.C. 2680a), as amended, provides that the Defense Base Act shall not 
apply with respect to such contracts as the Secretary of State 
determines are contracts with persons employed to perform work for the 
Department of State on an intermittent basis for not more than 90 days 
in a calendar year. ``Persons'' includes individuals hired by companies 
under contract with the Department. The Procurement Executive has the 
authority to issue the waivers for Contractor employees who work on an 
intermittent or short-term basis.
    (2) The Contractor shall submit waiver requests to the contracting 
officer. The request shall contain the following information:
    (i) Contract number;
    (ii) Name of Contractor;
    (iii) Brief description of the services to be provided under the 
contract and country of performance;
    (iv) Name and position title of individual(s);
    (v) Nationality of individual(s) (must be U.S. citizen or U.S. 
resident);
    (vi) Dates (or timeframe) of performance at the overseas location; 
and,
    (vii) Evidence of alternative workers' compensation coverage for 
these employees (e.g., evidence that the State workers' compensation 
program covers workers on short-term foreign assignments).
    (3) The contracting officer shall provide to the Contractor the 
original of the approved or disapproved document and maintain a copy in 
the contract file.

                             (End of clause)

    Alternate I. (MO/YR) If the contract is for construction, as 
prescribed in 628.309-70(b), substitute the following paragraph (c) for 
paragraph (c) of the basic clause:
    (c) The current rate under the Department of State contract is 
[contracting officer insert rate] of compensation for construction.

[71 FR 34841, June 16, 2006; 71 FR 41177, July 20, 2006]



Sec. 652.228-72--652.228-73  [Reserved]



Sec. 652.228-74  Defense Base Act insurance rates--Limitation.

    As prescribed in 628.309-70(c), insert the following provision:

         Defense Base Act Insurance Rates--Limitation (JUN 2006)

    (a) The Department of State has entered into a contract with an 
insurance carrier to provide Defense Base Act (DBA) insurance to 
Department of State covered contractor employees at a contracted rate. 
For the purposes of this provision, ``covered contractor employees'' 
includes the following individuals:
    (1) United States citizens or residents;
    (2) Individuals hired in the United States or its possessions, 
regardless of citizenship; and
    (3) Local nationals and third country nationals where contract 
performance takes place in a country where there are no local workers' 
compensation laws.
    (b) In preparing the cost proposal, the bidder/offeror shall use the 
following rates in computing the cost for DBA insurance:
    Services @[contracting officer insert current rate] of compensation; 
or
    Construction @[contracting officer insert current rate] of 
compensation.
    (c) Bidders/offerors shall compute the total compensation (direct 
salary plus differential, but excluding per diem, housing allowance and 
other miscellaneous allowances) to be paid to covered contractor 
employees and the cost of the DBA insurance in their bid/offer using the 
foregoing rate. Bidders/offerors shall include the estimated DBA 
insurance costs in their proposed total fixed price or estimated cost. 
However, the DBA insurance costs shall be identified in a separate line 
item in the bid/proposal.


[[Page 373]]



                           (End of provision)

[71 FR 34841, June 16, 2006; 71 FR 41177, July 20, 2006]



Sec. 652.229-70  Excise Tax Exemption Statement for Contractors Within 

the United States.

    As prescribed in 629.401-70, insert the following clause:

Excise Tax Exemption Statement for Contractors Within the United States 
                               (JUL 1988)

    This is to certify that the item(s) covered by this contract is/are 
for export solely for the use of the U.S. Foreign Service Post 
identified in the contract schedule.
    The Contractor shall use a photocopy of this contract as evidence of 
intent to export. Final proof of exportation may be obtained from the 
agent handling the shipment. Such proof shall be accepted in lieu of 
payment of excise tax.

                             (End of clause)

[53 FR 26177, July 11, 1988, as amended at 64 FR 43632, Aug. 11, 1999]



Sec. 652.229-71  Personal Property Disposition at Posts Abroad.

    As prescribed in 629.402-1-70, insert the following clause:

        Personal Property Disposition at Posts Abroad (AUG 1999)

    Regulations at 22 CFR Part 136 require that U.S. Government 
employees and their families do not profit personally from sales or 
other transactions with persons who are not themselves entitled to 
exemption from import restrictions, duties, or taxes. Should the 
contractor experience importation or tax privileges in a foreign country 
because of its contractual relationship to the United States Government, 
the contractor shall observe the requirements of 22 CFR part 136 and all 
policies, rules, and procedures issued by the chief of mission in that 
foreign country.

                             (End of clause)

[64 FR 43633, Aug. 11, 1999]



Sec. 652.232-70  Payment Schedule and Invoice Submission (Fixed-Price).

    As prescribed in 632.908(a), the contracting officer may insert a 
clause substantially the same as follows:

    Payment Schedule and Invoice Submission (Fixed-Price) (AUG 1999)

    (a) General. The Government shall pay the contractor as full 
compensation for all work required, performed and accepted under this 
contract, inclusive of all costs and expenses, the firm fixed-price 
stated in Section B of this contract.
[Use paragraph (b) only if partial payments apply. Otherwise, paragraph 
(a) above assumes the contractor will be paid in full amount upon 
completion of all contractural requirements.]
    (b) Payment Schedule. Payments will be made in accordance with the 
following partial payment schedule:

------------------------------------------------------------------------
                                  Specific      Delivery       Payment
     Partial payment No.        deliverable       date         amount
------------------------------------------------------------------------
1                              .............  ............  ............
2                              .............  ............  ............
3                              .............  ............  ............
------------------------------------------------------------------------

[Continue as necessary]

    (c) Invoice Submission. Invoices shall be submitted in an original 
and [contracting officer insert appropriate number of copies] to the 
office identified in Block 10 of the SF-26, Block 23 of the SF-33, or 
Block 18b of the SF-1449. To constitute a proper invoice, the invoice 
must include all items per FAR 52.232-25, ``Prompt Payment''.
    (d) Contractor Remittance Address. Payment shall be made to the 
contractor's address as specified on the cover page of this contract, 
unless a separate remittance address is specified below:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

                             (End of clause)

[59 FR 66771, Dec. 28, 1994, as amended at 64 FR 43633, Aug. 11, 1999]



Sec. 652.232-71  Voucher Submission (Cost-Reimbursement).

    As prescribed in 632.908(b), the contracting officer may insert a 
clause substantially the same as follows:

           Voucher Submission (Cost-Reimbursement) (AUG 1999)

    (a) General. The contractor shall submit, on a monthly basis 
[contracting officer may substitute a different time frame, if 
appropriate], an original and [contracting officer insert appropriate 
number] copies of each voucher. In addition to the items necessary per 
FAR 52.232-25, ``Prompt Payment'', the voucher shall show the elements 
of cost for the billing period and the cumulative costs to date. All 
vouchers shall be submitted to

[[Page 374]]

the office identified in Block 10 of the SF-26, Block 23 of the SF-33, 
or Block 18b of the SF-1449.
    (b) Contractor Remittance Address. Payment shall be made to the 
contractor's address as specified on the cover page of this contract, 
unless a separate remittance address is specified below:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

                             (End of clause)

[59 FR 66772, Dec. 28, 1994, as amended at 64 FR 43633, Aug. 11, 1999]



Sec. 652.232-72  Limitation of Funds.

    As prescribed in 632.705-70, insert the following clause:

                     Limitation of Funds (AUG 1999)

    (a) Of the total price in Section B (or the ``Prices'' section), 
only the amount stated on the contract award document or subsequent 
modifications is now available for payment and obligated under this 
contract. It is anticipated that from time to time, additional funds 
will be obligated under the contract until the total price of the 
contract is obligated.
    (b) The Government is not obligated to pay or reimburse the 
contractor more than the amount obligated pursuant to this clause. The 
contractor agrees to perform the contract up to the point at which the 
total amount paid and payable by the Government (including amounts 
payable for subcontracts and settlement costs if this contract is 
terminated for convenience) approximates but does not exceed the total 
amount obligated.
    (c)(1) It is contemplated that funds now obligated under this 
contract will cover the work to be performed until [contracting officer 
insert date].
    (2) If the contractor considers the funds obligated under this 
contract to be insufficient to cover the work to be performed until that 
date, or another date agreed to by the parties, the contractor shall 
notify the contracting officer in writing and indicate the date on which 
it expects expended funds to approximate 75 percent of the total amount 
obligated. The notice shall state the estimated amount of additional 
funds required to continue performance through the date specified in 
paragraph (c)(1) of this clause or another date agreed to by the 
parties.
    (3) If, after notification is provided pursuant to paragraph (c)(2) 
of this clause, additional funds are not obligated, or an earlier date 
than the date in paragraph (c)(1) of this clause is not agreed to, the 
contractor shall not be obligated to continue performance under this 
contract (including actions under the termination clause of this 
contract) beyond the funds obligated for contract performance.
    (d) When additional funds are obligated from time to time for 
continued performance of this contract, the contract shall be modified 
to increase the funds obligated and to indicate the period of 
performance for which funds are applicable. The contractor may notify 
the contracting officer as provided in paragraph (c)(2) of this clause 
regarding any additional funds obligated.
    (e) If the contractor incurs additional costs or is delayed in the 
performance of work under this contract, solely by reason of the 
Government's failure to obligate additional funds in amounts sufficient 
for the timely performance of this contract, an equitable adjustment may 
be made to the price, or time of delivery, or both.
    (f) This clause shall become inoperative upon obligation of funds 
sufficient to cover the full price stated in the contract, except for 
rights and obligations then existing under this clause.
    (g) Nothing in this clause shall affect the Government's right to 
terminate the contract for convenience or default.

                             (End of clause)

[64 FR 43633, Aug. 11, 1999]



Sec. 652.236-70  Accident Prevention.

    As prescribed in 636.513, insert the following clause:

                     Accident Prevention (APR 2004)

    (a) General. The contractor shall provide and maintain work 
environments and procedures which will safeguard the public and 
Government personnel, property, materials, supplies, and equipment 
exposed to contractor operations and activities; avoid interruptions of 
Government operations and delays in project completion dates; and, 
control costs in the performance of this contract. For these purposes, 
the contractor shall:
    (1) Provide appropriate safety barricades, signs and signal lights;
    (2) Comply with the standards issued by any local government 
authority having jurisdiction over occupational health and safety 
issues; and,
    (3) Ensure that any additional measures the contracting officer 
determines to be reasonably necessary for this purpose are taken.
    (4) For overseas construction projects, the contracting officer 
shall specify in writing additional requirements regarding safety if the 
work involves:
    (i) Scaffolding;
    (ii) Work at heights above two (2) meters;

[[Page 375]]

    (iii) Trenching or other excavation greater than one (1) meter in 
depth;
    (iv) Earth moving equipment;
    (v) Temporary wiring, use of portable electric tools, or other 
recognized electrical hazards. Temporary wiring and portable electric 
tools require the use of a ground fault circuit interrupter (GFCI) in 
the affected circuits; other electrical hazards may also require the use 
of a GFCI;
    (vi) Work in confined spaces (limited exits, potential for oxygen 
less than 19.5 percent or combustible atmosphere, potential for solid or 
liquid engulfment, or other hazards considered to be immediately 
dangerous to life or health such as water tanks, transformer vaults, 
sewers, cisterns, etc.);
    (vii) Hazardous materials--a material with a physical or health 
hazard including but not limited to, flammable, explosive, corrosive, 
toxic, reactive or unstable, or any operations which creates any kind of 
contamination inside an occupied building such as dust from demolition 
activities, paints, solvents, etc.; or
    (viii) Hazardous noise levels.
    (b) Records. The contractor shall maintain an accurate record of 
exposure data on all accidents incident to work performed under this 
contract resulting in death, traumatic injury, occupational disease, or 
damage to or theft of property, materials, supplies, or equipment. The 
contractor shall report this data in the manner prescribed by the 
contracting officer.
    (c) Subcontracts. The contractor shall be responsible for its 
subcontractors' compliance with this clause.
    (d) Written program. Before commencing work, the contractor shall:
    (1) Submit a written plan to the contracting officer for 
implementing this clause. The plan shall include specific management or 
technical procedures for effectively controlling hazards associated with 
the project; and,
    (2) Meet with the contracting officer to discuss and develop a 
mutual understanding relative to administration of the overall safety 
program.
    (e) Notification. The contracting officer shall notify the 
contractor of any non-compliance with these requirements and the 
corrective actions required. This notice, when delivered to the 
contractor or the contractor's representative on site, shall be deemed 
sufficient notice of the non-compliance and corrective action required. 
After receiving the notice, the contractor shall immediately take 
corrective action. If the contractor fails or refuses to promptly take 
corrective action, the contracting officer may issue an order suspending 
all or part of the work until satisfactory corrective action has been 
taken. The contractor shall not be entitled to any equitable adjustment 
of the contract price or extension of the performance schedule on any 
suspension of work order issued under this clause.

                             (End of clause)

[64 FR 43633, Aug. 11, 1999, as amended at 69 FR 19339, Apr. 13, 2004]



Sec. 652.236-71  Foreign Service Buildings Act, as Amended.

    As prescribed in 636.570(a), insert the following provision:

          Foreign Service Buildings Act, as Amended (APR 2004)

    (a) This solicitation is subject to Section 11 of the Foreign 
Service Buildings Act of 1926, as amended (22 U.S.C. 302). This statute 
limits competition under this solicitation to:
    (1) American-owned firms, as described in paragraph (b) of this 
provision; and,
    (2) Firms from countries that permit or agree to permit 
substantially equal access to American firms for comparable diplomatic 
and consular building projects.
    (b) To qualify as an American-owned firm for purposes of this 
solicitation, the bidder/offeror must demonstrate evidence of:
    (1) Performance of similar construction work in the United States; 
and
    (2) Either--
    (i) Ownership in excess of 50% by U.S. citizens or permanent 
residents; or
    (ii) Incorporation in the United States for more than three (3) 
years and employment of U.S. citizens or permanent residents in more 
than half of the company's permanent full-time professional and 
managerial positions in the United States.
    (c) For purposes of determining competitive status, offers submitted 
by American-owned firms shall be reduced by ten (10) percent, provided 
that two responsible bidders/offerors submit a bid/offer.
    (d) Evidence of qualification. (1) Performance of similar 
construction work in the United States. The bidder/offeror must describe 
below one or more similar projects completed in the United States. For 
each project, provide the following information:

 Location:______________________________________________________________
 (City and State)_______________________________________________________
 Complexity:____________________________________________________________
________________________________________________________________________
(Office building, etc.)
 Type of construction:__________________________________________________
 Value of project:______________________________________________________
 Location:______________________________________________________________
 (City and State)_______________________________________________________
 Complexity:____________________________________________________________
________________________________________________________________________
(Office building, etc.)
 Type of construction:__________________________________________________
 Value of project:______________________________________________________
 Location:______________________________________________________________

[[Page 376]]

 (City and State)_______________________________________________________
 Complexity:____________________________________________________________
________________________________________________________________________
(Office building, etc.)
 Type of construction:__________________________________________________
 Value of project:______________________________________________________
    If the bidder/offeror's participation was as a partner or co-
venture, indicate the percentage of the project performed by the bidder/
offeror: ------ %
    (2) Corporate location or ownership.
    (i) The bidder/offeror certifies that it [squ] is [squ] is not owned 
in excess of fifty (50) percent by United States citizens or permanent 
residents.
    (ii) The bidder/offeror certifies that it [squ] has [squ] has not 
been incorporated in the United States for more than three years and 
that it [squ] employs [squ] does not employ United States citizens or 
permanent residents in more than half of its permanent full-time 
professional and managerial positions in the United States.
    (e) By signing this bid/offer, the bidder/offeror certifies to the 
best of its knowledge, all of the representations and certifications 
provided in this provision are accurate, current and complete.

                           (End of provision)

[69 FR 19339, Apr. 13, 2004]



Sec. 652.236-72  Statement of Qualifications for the Omnibus Diplomatic 

Security and Antiterrorism Act.

    As prescribed in 636.570(b), insert the following provision:

  Statement of Qualifications for the Omnibus Diplomatic Security and 
                      Antiterrorism Act (APR 2004)

    (a) This solicitation is subject to Section 402 and Section 406(c) 
of the Omnibus Diplomatic Security and Antiterrorism Act of 1986 (P.L. 
99-399; 22 U.S.C. 4852). The Act limits certain construction projects 
abroad to United States persons or United States joint venture persons, 
and excludes organizations that have business arrangements with Libya. 
This Statement of Qualifications shall be used to determine if a bidder/
offeror meets the definition of a ``United States person'' or a ``United 
States joint venture person'' and whether they have any business 
arrangements with Libya that may disqualify them from participating in 
this solicitation.
    (b) Definition. As used in this provision--
    U.S. person means a company, partnership, or joint venture that the 
Government determines, after consideration of all available information, 
including but not limited to that provided by the bidder/offeror in 
response to this solicitation, to be qualified pursuant to Section 402.
    (c) Representation. The bidder/offeror represents as part of its 
bid/offer that it [squ] does [squ] does not meet the qualifications as a 
U.S. person as set forth in Section 402 of the Act.
    [Complete a Statement of Qualifications for Purposes of Determining 
Status as a U.S. Person if the offeror represents that it is eligible. 
See paragraph (d) of this provision.]
    Warning: Any material misrepresentation made in the Statement of 
Qualifications may be the basis for disqualification of a bidder/offeror 
and reference for consideration of suspension or debarment or for 
prosecution under Federal law (cf. 18 U.S.C. 1001). Bidder/offeror 
qualifications will be determined primarily on the basis of information 
submitted in the Statement of Qualifications, including attachments 
thereto, but the Government may, at its discretion, rely on information 
contained elsewhere in the bidder's/offeror's bid/proposal or obtained 
from other sources.
    (d) Statement of Qualifications for Purposes of Determining Status 
as a U.S. Person (22 U.S.C. 4852). A bidder/offeror that represents that 
it is a U.S. person must provide the following information.
    Statement of Qualifications for Purposes of Determining Status as a 
U.S. Person (22 U.S.C. 4852)
Name and address of U.S. person organization providing this information:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

    Introduction. Section 402 of the Omnibus Diplomatic Security and 
Antiterrorism Act (Public Law 99-399) provides that a ``United States 
person'' or a ``qualified United States joint venture'' must meet 
certain requirements, listed in sections 402(c)(2) and (3) of the Act, 
to be eligible to compete. To assist business entities to determine 
whether they qualify as a U.S. person or U.S. joint venture person, 
guidance is hereby provided. For ease of reference, the statutory 
language is quoted immediately before the definitions that apply to it. 
Space for the required information is provided immediately following 
each definition.
    Note: The Statement of Qualifications shall provide information 
correctly applicable to the U.S. person whose qualifications are being 
certified, and shall not include information pertaining to corporate 
affiliates or subsidiaries. Organizations that wish to use the 
experience or financial resources of any other legally dependent 
organization or individual, including parent companies, subsidiaries, or 
other related organizations, must do so by way of a joint venture. A 
prospective bidder/offeror may be an individual organization or firm, a 
formal joint venture in which the co-venturers have reduced their 
arrangement to writing, or a de facto joint venture where no formal 
agreement has been reached, but the offering entity relies upon the 
experience of a related U.S. firm that

[[Page 377]]

guarantees performance. To be considered a ``qualified United States 
joint venture person,'' the joint venture must have at least one firm or 
organization that itself meets all the requirements of a U.S. person 
listed in Section 402. By signing this bid/proposal, the U.S. person co-
venturer agrees to be individually responsible for performance of the 
contract, notwithstanding the terms of any joint venture agreement.
    1. Section 402(c)(2)(A): ``The term `United States person' means a 
person which--(A) is incorporated or legally organized under the laws of 
the United States, including the District of Columbia, and local laws.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    Incorporated means the successful de jure incorporation of a 
business organization pursuant to the laws of any United States 
jurisdiction or component thereof.
    Legally organized means the legally recognized existence of an 
organization other than a de jure corporation (e.g., a partnership) 
under the laws of any United States jurisdiction or component thereof. 
Only organizations that have a legal status, including the right to 
bring suit, to sign contracts, and to hold property under the law of the 
jurisdiction where they are doing business will qualify as legally 
organized. A natural person who is a United States citizen acting in his 
or her entrepreneurial capacity will be deemed to be a ``person legally 
organized'' within the scope of this definition, provided that the 
prospective bidder/offeror holds all required licenses to do business in 
the jurisdiction where he or she is located.
    United States means any jurisdiction that is one of the fifty 
States, the District of Columbia, a United States territory, a United 
States possession, or the Commonwealths of Puerto Rico and the Northern 
Mariana Islands.
    Question 1. The organization seeking eligibility under Section 402 
is incorporated or is legally organized under the laws of what 
jurisdiction?
________________________________________________________________________

    2. Section 402(c)(2)(B): ``The term `United States person' means a 
person which--(B) has its principal place of business in the United 
States.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    Principal place of business means the main location of the 
prospective bidder/offeror. For purposes of this section, a prospective 
bidder/offeror shall identify only one principal place of business, and 
such location shall include at least the offices of the chief operating 
officer and headquarters staff. The named location must be a United 
States jurisdiction from which a tax return has been filed or will be 
filed during the calendar year in which the prospective bidder/offeror 
submits this bid/offer.
    United States means any jurisdiction that is one of the fifty 
States, the District of Columbia, a United States territory, a United 
States possession, or the Commonwealths of Puerto Rico and the Northern 
Mariana Islands.
    Question 2(a). The organization seeking eligibility has its 
principal place of business in what city and state?
________________________________________________________________________

    Question 2(b). What kind of tax return was or will be filed, and in 
what jurisdiction, during the current calendar year?
 (i) Jurisdiction:______________________________________________________
(e.g., federal, state, city)
    (ii) Type of return (e.g., income tax, franchise tax, etc.). Include 
all that apply:
________________________________________________________________________
________________________________________________________________________

    3. Section 402(c)(2)(C): ``The term `United States person' means a 
person which has been incorporated or legally organized in the United 
States--
    (i) for more than 5 (five) years before the issuance date of the 
invitation for bids or request for proposals with respect to a 
construction project under subsection (a)(1); and,
    (ii) for more than 2 (two) years before the issuance date of the 
invitation for bids or request for proposals with respect to a 
construction or design project abroad that involves technical security 
under subsection (a)(2).''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    Has been incorporated or legally organized means that the 
organization can show continuity as an ongoing business. Organizations 
that have changed only their names meet the continuity requirement of 
this subsection. Organizations that have been bought, sold, merged, or 
otherwise substantially altered or enlarged their principal business 
activities will have the burden of proving that there have been ongoing 
operations by the same business entity for the required period of time. 
If the successor entity has acquired all of the assets and liabilities 
of the predecessor business and the predecessor business has no further 
existence, the successor may claim the incorporation date of the 
predecessor. In any other circumstance, the prospective bidder/offeror 
must show that the law of the jurisdiction in which it operates regards 
the prospective bidder/offeror as the complete successor in interest of 
the predecessor business for purpose of contractual obligations.
    Issuance date means the date in Block 3 of the Standard Form 1442 
accompanying this solicitation.
    Years means calendar years measured from day of the month to day of 
the month. For example, January 1, 2002 through December

[[Page 378]]

31, 2002 is one calendar year, as is July 1, 2002 through July 1, 2003.
    Question 3:
    (i) On what date was the organization seeking eligibility 
incorporated or legally organized? ----------------
    (ii) If this date is less than the required number of years before 
the issuance date, on the basis of what documentation does the 
organization seeking eligibility claim that it has been in business for 
the requisite period of time?-------------------------------- (Identify, 
and forward copies as an Attachment to this Statement. This material may 
include such items as certificates of incorporation, partnership 
agreements, resolutions of boards of directors, etc.).
    4. Section 402(c)(2)(D): ``The term `United States person' means a 
person which has performed within the United States or at a United 
States diplomatic or consular establishment abroad administrative and 
technical, professional, or construction services similar in complexity, 
type of construction, and value to the contract being bid.''
    Definitions for purposes of Section 402 determination of 
eligibility--
    Administrative and technical, professional, or construction services 
means the kind of work in which the prospective bidder/offeror is 
interested. If the proposed contract is for construction management 
services, the prospective bidder/offeror will be expected to demonstrate 
construction management expertise. In general, ``administrative'' means 
the capacity or ability to manage; ``technical'' means the specific 
skills peculiar to the type of work required; ``professional'' means 
expert services resulting from advanced training in the type of work 
required; and ``construction'' experience if it has not directly 
performed all of the actual construction activities. Thus, an entity 
whose only construction work experience was performed by its legally 
distinct subsidiary or parent will not be considered to have 
construction experience.
    Complexity means the physical size and technical size and demands of 
the project. ``Performed'' means projects that have been fully completed 
by the prospective bidder/offeror and accepted by the owner or other 
party to the transaction. Projects still in progress have not yet been 
performed for purposes of this definition.
    Type of construction means the overall nature of the facilities to 
be built, including the kinds of materials to be used. Thus, if the 
contract will require the construction of a multi-story office building, 
the prospective bidder/offeror will be expected to demonstrate 
experience with facilities of this type.
    Value means the total contract price of the project, not to the 
profit or loss to the bidder/offeror.
    Within the United States means a United States jurisdiction that is 
the place where the subject matter of the contract or other arrangement 
was in fact completed. It does not mean the place where the contract or 
other arrangement was negotiated or signed. The term ``United States'' 
means any jurisdiction that is one of the 50 states, the District of 
Columbia, a United States territory, a United States possession, or the 
Commonwealth of Puerto Rico and the Northern Mariana Islands.
    Question 4: List on this page, and an attachment (if necessary), one 
or more similar projects completed by the prospective bidder/offeror. 
For each project, provide the following information:
________________________________________________________________________
Location:
(City and State, or Country)
________________________________________________________________________
Type of service:
(administrative, etc.)
________________________________________________________________________
Complexity:
(office building, etc.)
________________________________________________________________________
Type of construction:
________________________________________________________________________
Value of project:

    If the prospective bidder/offeror's participation was as a partner 
or co-venturer, indicate the percentage of the project performed by the 
prospective offeror: -------- %
    5. Section 402(c)(2)(E): ``The term `United States person' means a 
person which--with respect to a construction project under subsection 
(a)(1)--has achieved a total business volume equal to or greater than 
the value of the project being bid in 3 years of the 5-year period 
before the date specified in subparagraph (C)(i).''
    Definitions of purposes of Section 402 determination of 
eligibility--
    3 years of the 5-year period before the date specified in 
subparagraph (C)(i) means the three to five calendar year period 
immediately preceding the issuance date of this solicitation.
    Total business volume means the U.S. dollar value of the gross 
income or receipts reported by the prospective bidder/offeror on its 
annual federal income tax returns.
    Years means the business year of the prospective bidder/offeror, as 
reflected on its annual federal income tax returns.
    Question 5: Please complete the information below for at least three 
of the five listed years.
    The gross receipts for the business year: (list year and amount).
    The gross receipts for the business year: (list year and amount).
    The gross receipts for the business year: (list year and amount).
    The gross receipts for the business year: (list year and amount).

[[Page 379]]

    The gross receipts for the business year: (list year and amount).
    6. Section 402(c)(2)(F): ``The term `United States person' means a 
person which--(i) employs United States citizens in at least 80 percent 
of its principal management positions in the United States; (ii) employs 
United States citizens in more than half of its permanent, full-time 
positions in the United States; and (iii) will employ United States 
citizens in at least 80 percent of the supervisory positions on the 
foreign buildings office project site.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    In the United States refers to those positions that the prospective 
bidder/offeror maintains within all jurisdictions which are one of the 
50 states, the District of Columbia, a United States territory, a United 
States possession, or the Commonwealths of Puerto Rico and the Northern 
Mariana Islands.
    Permanent, full-time positions means positions with the prospective 
bidder/offeror that are intended to be indefinite, as opposed to 
limited, seasonal, or project-duration periods. The term `full-time' 
refers to positions in which the occupants are expected to and 
ordinarily work 40 hours a week. The term `permanent, full-time 
positions' covers the portion of the prospective bidder's/offeror's 
workforce that continues to be employed without regard to the 
fluctuating requirements of production or projects.
    Principal management positions refers to chief operating officer and 
those management officials reporting directly to him or her. In the case 
of a partnership, the term refers to every general partner. In the case 
of a corporation, the term refers to those officers of the corporation 
who are active in running its day-to-day operations. Members of 
corporation boards of directors who do not have operational 
responsibilities do not occupy ``principal management positions'' simply 
by virtue of their service on the board. In all cases, the term 
``principal management positions'' also includes the position or 
positions held by the individual or individuals who will have primary 
corporate management oversight responsibility for this contract if the 
prospective bidder/offeror is awarded the contract. Each prospective 
bidder/offeror is responsible for listing all of its principal 
management positions and identifying their current occupants by name and 
citizenship.
    Supervisory positions means all positions with significant authority 
to direct the work of others as well as those for which access to 
classified or controlled documents is required. Such positions will be 
identified in each contract.
    United States citizen means natural persons with United States 
citizenship by virtue either of birth or of naturalization.
    Question 6(a): The bidder/offeror has the following staff:
    (i) Principal management positions in the United States:

                        Chief Operating Officer:

________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
    (ii) For each individual reporting directly to the above-named Chief 
Operating Officer, list position, name, and citizenship:
________________________________________________________________________
Position:
________________________________________________________________________
Name:
________________________________________________________________________
Citizenship:
    (iii) Individual(s) expected to have primary management oversight 
responsibility for contract if it is awarded:
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
    Question 6(b): Number of permanent, full-time positions in the 
United States: --------
    Question 6(c): Number of United States citizens currently employed 
in permanent, full-time positions in the United States: --------
    Question 6(d): Certification of intent to employ U.S. citizens in a 
minimum of 80 percent of the supervisory positions identified by the 
Government on this project:
 I so certify:__________________________________________________________
(signature)
________________________________________________________________________
(name typed or printed)
________________________________________________________________________
(position)
________________________________________________________________________
(date)
    7. Section 402(c)(2)(G): ``The term `United States person' means a 
person which has the existing technical and financial resources in the 
United States to perform this contract.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    Existing technical and financial resources means the capability of 
the prospective bidder/offeror to mobilize adequate staffing and 
monetary arrangements from within the United States sufficient to 
perform the contract. Adequate staffing levels may be demonstrated by 
presenting the resumes of current United States citizens and resident 
aliens with skills and expertise necessary for the work in which the 
prospective bidder/offeror is interested or some other indication of 
available United States citizen or permanent legal resident human 
resources. Demonstration of adequate financial resources must be issued 
by entities that are subject to the jurisdiction of United States courts 
and have agents located within the United States for acceptance of 
service of process.

[[Page 380]]

    Question 7: Submit, as an Attachment to this Statement, materials 
demonstrating existing technical and financial resources in the United 
States.
    8. Section 402(c)(3): ``The term `qualified United States joint 
venture person' means a joint venture in which a United States person or 
persons owns at least 51 percent of the assets of the joint venture.''
    Definitions for purposes of Section 402 determinations of 
eligibility--
    Assets means tangible and intangible things of value conveyed or 
made available to the joint venture by the co-venturers.
    Joint venture means a formal or de facto arrangement by and through 
which two or more persons or entities associate for the purpose of 
carrying out the prospective contract. Prospective bidders/offerors are 
advised that a joint venture may not be acceptable to projects requiring 
a Department of Defense facility security clearance because each co-
venturer may post particular problems in obtaining security clearances. 
To be acceptable, all members of a joint venture must be individually 
and severally liable for the full performance of and resolution of any 
and all matters arising out of the contract, notwithstanding any 
provision of the joint venture agreement of law of the jurisdiction 
under which the joint venture was created.
    Question 8(a): The bidder/offeror is is not a joint venture.
    Question 8(b): If the bidder/offeror is a joint venture, the U.S. 
person participant is:
________________________________________________________________________
(name)
________________________________________________________________________
(address)
    Question 8(c): If the bidder/offeror is a joint venture, the names 
and countries of citizenship for all co-venturers are as follows:
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
    Question 8(d): If the bidder/offeror is a joint venture, the U.S. 
person will own at least 51 percent of the assets of the joint venture.
 I so certify:__________________________________________________________
(signature)
________________________________________________________________________
(name typed printed)
________________________________________________________________________
(position)
________________________________________________________________________
(title)
    9. Libya. Section 406(c) states ``No person doing business with 
Libya may be eligible for any contract awarded pursuant to this Act.''
    Definitions for purposes of Section 406 eligibility--
    Contract awarded establishes a time frame for the bar on doing 
business with Libya. The time during which a relationship with Libya is 
prohibited begins on the date the Section 406 information is submitted. 
For bidders/offerors not selected for contract award, the prohibition 
ceases on the date of award. For the bidder/offeror that is awarded the 
contract, the bar continues through the life of the contract, ending on 
the date of final acceptance of the work.
    Doing business means all transactions of any kind agreed to or 
performed after the earlier of the date on which a bid/proposal is 
submitted to the Department of State under this solicitation or on which 
the contract, subcontract, program, or other arrangement with the 
Department of State is awarded or becomes effective. Any transaction 
commenced prior to the date of submittal or award and not yet completed 
must be reported. Transactions that call for continued or future 
performance shall be disqualifying. Transactions that have been 
completely performed but for which payment has not yet been made must be 
reported, but shall not be disqualifying unless any event other than 
payment of a previously-agreed upon sum occurs. Examples of 
disqualifying actions include any pending litigation arising out of 
business transactions with Libya, renegotiation of the terms of a loan, 
and refinancing an amount owed or owing.
    Person means any individual or legal entity, whether U.S. or 
foreign. Subcontractors and others who do not have a direct contractual 
relationship with the United States are not covered by this section.
    With Libya means transactions between any person and the Government 
of Libya, government entities of Libya, or any other organization wholly 
owned or effectively controlled by the Government of Libya. It is the 
responsibility of the entity submitting Section 406 information to 
disclose existing relationships with the entities that it has reasonable 
grounds to believe are or may be Libyan. In case of doubt or dispute, 
the Department of State shall determine, at its sole discretion, whether 
any organization is a governmental entity of Libya, wholly owned by the 
Government of Libya, or effectively controlled by the Government of 
Libya.

                              Certification

    Based on the foregoing, I hereby certify on behalf of this 
organization that it is is not doing business with Libya as those terms 
are used in Section 406(c) of the Omnibus Diplomatic Security and 
Antiterrorism Act of 1986.

[[Page 381]]

    (e) Signature: By signing this document, the offeror indicates that 
to the best of his or her knowledge, all of the representations and 
certifications provided in response to the questions contained in this 
Statement of Qualifications are accurate, current, and complete and that 
the offeror is aware of the penalty prescribed in 18 U.S.C. 1001 for 
making false statements.

                           (End of provision)

[69 FR 19339, Apr. 13, 2004]



Sec. 652.237-70  Compensatory time off.

    As prescribed in 637.110(a), insert the following clause:

                    Compensatory Time Off (DEC 1994)

    (a) Compensatory time off means time from work during the personal 
service contract employee's basic work week in exchange for performing 
an equal amount of irregular of occasional overtime work which is 
officially ordered or approved.
    (b) At the discretion of the Contracting Officer's Representative 
(COR), the contractor may earn compensatory time off in accordance with 
3 FAM Section 232.6--Compensatory Time Off. Compensation time off 
remaining to the credit of a personal services contract employee at the 
end of a 16-week period and/or at the end of the contract period shall 
be forfeited.
    (c) Compensatory time may not be converted to overtime.

                             (End of clause)

[59 FR 66772, Dec. 28, 1994]



Sec. 652.237-71  Identification/Building Pass.

    As prescribed in 637.110(b), insert the following clause.

                 Identification/Building Pass (APR 2004)

    (a) Contractors working in domestic facilities who already possess a 
security clearance.
    (1) The contractor shall obtain a Department of State building pass 
for all employees performing under this contract who require frequent 
and continuing access to Department of State facilities. The Bureau of 
Diplomatic Security, Office of Domestic Facilities Protection, shall 
issue passes. They shall be used for the purpose of facility access 
only, and shall not be used for any other purpose.
    (2) The contractor shall submit a Visitor Authorization Request 
(VAR) Letter to the Bureau of Diplomatic Security, Information Security 
Programs Division, Industrial Security Branch (DS/ISP/INB) on its 
cleared employees containing the following information:
    (i) Contractor employee's full name, social security number, and 
date of birth;
    (ii) Contractor's company name;
    (iii) Security clearance level;
    (iv) Date the clearance was granted;
    (v) Name of the contractor's Facility Security Officer;
    (vi) Contracting Officer's Representative (COR); and,
    (vii) Contract number.
    (3) DS/ISP/INB shall process and approve the VAR letter, if 
appropriate. The approved VAR letter shall be forwarded to the 
contractor for their records.
    (4) The contractor employee shall hand-carry the following 
documentation to the Building Pass Office, Department of State, 520 23rd 
Street, courtyard of Columbia Plaza, Washington, DC:
    (i) A Department of State sponsorship letter from the COR, 
addressing the following:
    (A) The purpose for which the pass is being requested;
    (B) The employee's valid security clearance level (reflected on the 
VAR);
    (C) Contract number and period of performance;
    (D) Type of access (24/7, normal business hours, escort authority or 
no escort authority granted); and
    (E) Expiration date of building pass (1 year or 3 years);
    (ii) Letter on company letterhead to accompany the application, 
containing the following information:
    (A) The purpose for which the pass is being requested;
    (B) Verification of employment;
    (C) The employee's valid security clearance level; and,
    (D) Contract number and period of performance;
    (iii) The DS-1838, Request for Building Pass Identification Card.
    (b) Contractors working in domestic facilities where security 
clearances are not required.
    (1) The contractor shall obtain a Department of State building pass 
for all employees performing under this contract who require frequent 
and continuing access to Department of State facilities. The Bureau of 
Diplomatic Security, Office of Domestic Facilities Protection, shall 
issue passes. They shall be used for the purpose of facility access 
only, and shall not be used for any other purpose.
    (2) The contractor shall submit the following paperwork, in 
original, to the Bureau of Diplomatic Security, Information Security 
Programs Division, Industrial Security Branch (DS/ISP/INB):
    (i) SF-85P, Questionnaire for Public Trust Positions;
    (ii) SF-85P/S, Supplemental Questionnaire for Selected Positions; 
and,

[[Page 382]]

    (iii) DOS Credit Release, which may be obtained from DS/ISP/INB via 
mail or facsimile.
    (3) DS/ISP/INB shall conduct a preliminary background check. If the 
background check is favorable, DS/ISP/INB will forward a letter to the 
company Facility Security Officer (FSO) notifying them that the 
individual may proceed to the Building Pass Office to continue the 
badging process. DS/ISP/INB will forward a copy of this letter to the 
Building Pass Office.
    (4) When a contractor employee is approved to receive a building 
pass, he/she shall hand-carry the following documentation to the 
Contractor Building Pass Office, Department of State, 520 23rd Street, 
NW., courtyard of Columbia Plaza, NW., Washington, DC.:
    (i) A Department of State sponsorship letter from the COR, 
addressing the following:
    (A) The purpose for which the pass is being requested;
    (B) Whether or not the employee has a valid security clearance;
    (C) Contract number and period of performance;
    (D) Type of access (24/7, normal business hours, escort authority or 
no escort authority granted); and
    (E) Expiration date of building pass (1 year or 3 years);
    (ii) DS Form 1838, Request for Building Pass Identification Card;
    (iii) Letter on company letterhead to accompany the application, 
containing the following information:
    (A) The purpose for which the pass is being requested;
    (B) Verification of employment;
    (C) Whether or not the applicant has a valid security clearance; 
and,
    (D) Contract number and period of performance;
    (iv) Original SF-85P or a copy of the SF-85P, with an original 
signature and current date;
    (v) Original SF-85P/S or a copy of the SF-85P/S, with an original 
signature and current date;
    (vi) Copy of the DOS Credit Release, with an original signature and 
current date; and,
    (vii) Original proof of U.S. citizenship, such as a birth 
certificate or valid U.S. passport. Non-U.S. citizens must submit a 
valid photo Immigration and Naturalization Service Employment 
Authorization Document (INS EAD).
    (5) Applicants shall be fingerprinted at the Building Pass Office 
and the process for a building pass shall be initiated. The approval 
process shall take at least 48 hours. Applicants shall not return to the 
Building Pass Office until they receive notification from DS/ISP/INB 
that the process is complete. Once DS/ISP/INB receives notification from 
the Building Pass Office that a building pass can be issued, DS/ISP/INB 
shall notify the FSO and the COR that the applicant has been approved 
for initial contract performance.
    (c) Contractors working in overseas facilities. Contractors shall 
submit appropriate documentation to obtain building passes as specified 
in the contract.
    (d) All contractor employees, both domestic and overseas, shall wear 
the passes in plain sight at all times while in Department of State 
buildings. All contractor employees shall show their passes, where 
appropriate, when entering these buildings and upon request of uniformed 
guards or any other authorized personnel.
    (e) All passes shall be returned to the COR upon separation of the 
employee, or expiration or termination of the contract. Final payment 
under this contract shall not be made until all passes are returned to 
the COR.

                             (End of clause)

[69 FR 19342, Apr. 13, 2004]



Sec. 652.237-72  Observance of Legal Holidays and Administrative Leave.

    As prescribed in 637.110(c), insert the following clause:

    Observance of Legal Holidays and Administrative Leave (APR 2004)

    (a) The Department of State observes the following days as holidays:

New Year's Day
Martin Luther King's Birthday
Washington's Birthday
Memorial Day
Independence Day
Labor Day
Columbus Day
Veterans Day
Thanksgiving Day
Christmas Day
Any other day designated by Federal law, Executive Order, or 
Presidential Proclamation.

    (b) When any such day falls on a Saturday or Sunday, the following 
Monday is observed. Observance of such days by Government personnel 
shall not be cause for additional period of performance or entitlement 
to compensation except as set forth in the contract. If the contractor's 
personnel work on a holiday, no form of holiday or other premium 
compensation will be reimbursed either as a direct or indirect cost, 
unless authorized pursuant to an overtime clause elsewhere in this 
contract.
    (c) When the Department of State grants administrative leave to its 
Government employees, assigned contractor personnel in

[[Page 383]]

Government facilities shall also be dismissed. However, the contractor 
agrees to continue to provide sufficient personnel to perform round-the-
clock requirements of critical tasks already in operation or scheduled, 
and shall be guided by the instructions issued by the contracting 
officer or his/her duly authorized representative.
    (d) For fixed-price contracts, if services are not required or 
provided because the building is closed due to inclement weather, 
unanticipated holidays declared by the President, failure of Congress to 
appropriate funds, or similar reasons, deductions will be computed as 
follows:
    (1) The deduction rate in dollars per day will be equal to the per 
month contract price divided by 21 days per month.
    (2) The deduction rate in dollars per day will be multiplied by the 
number of days services are not required or provided. If services are 
provided for portions of days, appropriate adjustment will be made by 
the contracting officer to ensure that the contractor is compensated for 
services provided.
    (e) If administrative leave is granted to contractor personnel as a 
result of conditions stipulated in any ``Excusable Delays'' clause of 
this contract, it will be without loss to the contractor. The cost of 
salaries and wages to the contractor for the period of any such excused 
absence shall be a reimbursable item of direct cost hereunder for 
employees whose regular time is normally charged, and a reimbursable 
item of indirect cost for employees whose time is normally charged 
indirectly in accordance with the contractor's accounting policy.

                             (End of clause)

[59 FR 66772, Dec. 28, 1994, as amended at 64 FR 43634, Aug. 11, 1999; 
69 FR 19343, Apr. 13, 2004]



Sec. 652.237-73  Statement of Qualifications for Preference as a U.S. 
          Person.

    As prescribed in 637.110(d), insert the following provision:

 Statement of Qualifications for Preference as a U.S. Person (APR 2004)

    (a) This solicitation is subject to Section 136 of the Foreign 
Relations Authorization Act, Fiscal Years 1990 and 1991 (22 U.S.C. 
4864). The Act encourages the participation of United States persons and 
qualified United States joint venture persons in the provision of local 
guard services overseas, and provides for a preference for eligible 
offers.
    (b) Definitions. As used in this provision--
    Eligible offer means an offer that (1) is otherwise responsive to 
the solicitation; and (2) contains a fully prepared Statement of 
Qualifications (see paragraph (d) of this provision), which upon review 
is determined by the Government to meet the requirements of Section 136 
for assignment of preference as a U.S. person.
    Preference means subtraction by the Government of ten percent (10%) 
from the total evaluated price of an offer.
    U.S. person means a company, partnership, or joint venture that the 
Government determines, after consideration of all available information, 
including but not limited to that provided by the offeror in response to 
the solicitation, to be qualified for assignment of preference pursuant 
to Section 136.
    (c) Representation. The offeror represents as part of its offer that 
it is, is not eligible for preference as a U.S. person. [Complete a 
Statement of Qualifications for Purposes of Obtaining Preference as a 
U.S. Person if the offeror represents that it is eligible. See paragraph 
(d) of this provision.]
    Warning: Any material misrepresentation made in the Statement of 
Qualifications may be the basis for disqualification of an offeror and 
reference for consideration of suspension or debarment or for 
prosecution under Federal law (cf. 18 U.S.C. 1001). The Government will 
determine offeror qualifications primarily on the basis of information 
submitted in the Statement of Qualifications, including Attachments 
thereto, but the Government may, at its discretion, rely on information 
contained elsewhere in the offeror's proposal or obtained from other 
sources.
    (d) Statement of Qualifications for Purposes of Obtaining Preference 
as a U.S. Person (22 U.S.C. 4864). An offeror that represents that it is 
eligible for preference as a U.S. person must provide the following 
information. This Statement of Qualifications must be a complete and 
certified document, and submitted as a separate Volume 5, with all 
necessary attachments, as defined in Section L of this solicitation.

 Statement of Qualifications for Purposes of Obtaining Preference as a 
                      U.S. Person (22 U.S.C. 4864)

Name and address of U.S. person or organization providing this 
information:
________________________________________________________________________
________________________________________________________________________

    Introduction. Section 136 of the Foreign Relations Authorization Act 
for Fiscal Years 1990 and 1991, Public Law 101-246 (22 U.S.C. 4864), as 
amended, provides that a ``United States person'' or a ``qualified 
United States joint venture'' must meet certain requirements, listed in 
the Act, to be eligible for the statutory preference. To assist business 
entities to determine whether they qualify as a

[[Page 384]]

U.S. person or U.S. joint venture person entitled to preference under 
Section 136, guidance is hereby provided. Only those prospective 
offerors submitting a properly completed and certified Volume 5 with 
their initial proposals will be considered in the determination of 
eligibility for assignment of preference as a U.S. person or U.S. joint 
venture person. For ease of reference, statutory language is quoted 
immediately before the definitions that apply to it. Space for the 
required information is provided immediately following each definition.
    Note: The Statement of Qualifications shall provide information 
correctly applicable to the U.S. person whose qualifications are being 
certified, and shall not include information pertaining to corporate 
affiliates or subsidiaries. Organizations that wish to use the 
experience or financial resources of another organization or individual, 
including parent companies, subsidiaries, or local, national or offshore 
organizations, must do so by way of a joint venture. The contract 
resulting from this solicitation shall not allow subcontracting. A 
prospective offeror may be a sole proprietorship, a formal joint venture 
in which the co-venturers have reduced their arrangement to writing, or 
a de facto joint venture with no written agreement. To be considered a 
``qualified joint venture person,'' the joint venture must have at least 
one firm or organization that itself meets all the requirements of a 
U.S. joint venture person listed in Section 136. By signing this 
proposal, the U.S. person co-venturer agrees to be individually 
responsible for performance of the contract, notwithstanding the terms 
of any joint venture agreement.
    1. Section 136(d)(1): ``The term `United States person' means a 
person which--(A) is incorporated or legally organized under the laws of 
the United States, including the laws of any State, locality, or the 
District of Columbia.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Incorporated means the state of legal recognition as an artificial 
person that may be afforded to a business entity pursuant to the laws of 
any United States jurisdiction or component thereof.
    Legally organized means the state of legal recognition that may be 
afforded to a business entity that is other than a corporation pursuant 
to the laws of any United States jurisdiction or component thereof. This 
is the least form of legal recognition that will qualify an offeror for 
this preference. Only those prospective offerors that have legal status, 
including the right to bring suit, to sign contracts, and to hold 
property under the law of the jurisdiction under which they are doing 
business will qualify as legally organized. A natural person who is a 
United States citizen acting in his or her entrepreneurial capacity will 
be deemed to be a ``person legally organized'' within the scope of this 
definition, provided that the prospective offeror holds all required 
licenses to do business in the jurisdiction where he or she is located.
    United States means any jurisdiction that is one of the fifty 
States, the District of Columbia, a United States territory, a United 
States possession, or the Commonwealth of Puerto Rico and the Northern 
Mariana Islands.
    Question 1. The organization seeking eligibility under Section 136 
is incorporated or is legally organized under the laws of what 
jurisdiction?
________________________________________________________________________

    2. Section 136(d)(1): ``The term `United States person' means a 
person that--(B) has its principal place of business in the United 
States.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Principal place of business means the geographic location of the 
main office or seat of management of the prospective offeror. For 
purposes of this Statement, a prospective offeror shall identify only 
one principal place of business, and such location shall include at 
least the offices of the chief operating officer and headquarters staff. 
The named location must be a United States jurisdiction in which the 
prospective offeror may bring suit and be sued and in which service of 
process shall be accepted.
    Question 2(a). The organization seeking eligibility has its 
principal office in what city and state?
________________________________________________________________________
    Question 2(b). What kind of tax return was or will be filed, and in 
what jurisdiction, during the current calendar year? The jurisdiction 
identified herein need not be the same jurisdiction identified in 
Question 2(a).
________________________________________________________________________
    (i) Jurisdiction:
________________________________________________________________________
    (ii) Type of return (e.g., income tax, franchise tax, etc.). Include 
all that apply:
________________________________________________________________________

    3. Section 136(d)(1): ``The term `United States person' means a 
person which--(C) has been incorporated or legally organized in the 
United States--(i) for more than 2 (two) years before the issuance date 
of the invitation for bids or request for proposals with respect to the 
contract under subsection (c) of this section.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Has been incorporated or legally organized means that the 
organization can show continuity as an ongoing business. Organizations 
that have changed only their names meet the continuity requirement of 
this subsection. Organizations that have been

[[Page 385]]

bought, sold, merged, or otherwise substantially altered or enlarged 
their principal business activities will have the burden of proving that 
there have been ongoing operations by the same business entity for the 
required period of time. If the successor entity has acquired all of the 
assets and liabilities of the predecessor entity and the predecessor 
entity has no further existence, the successor may claim the 
incorporation or legal organization date of the predecessor. In any 
other circumstance, the prospective offeror must show that the law of 
the jurisdiction in which it operates regards the prospective offeror as 
the complete successor in interest of the predecessor entity for purpose 
of contractual obligations.
    Issuance date means the date in Block 5 of the Standard Form 33 
accompanying this solicitation.
    Years means calendar years measured from day of the month to day of 
the month. For example, January 1, 2002 through December 31, 2002 is one 
calendar year, as is July 1, 2002 through July 1, 2003.
    Question 3:
    (i) On what date was the organization seeking eligibility 
incorporated or legally organized?
________________________________________________________________________
    (ii) If this date is less than two years before the issuance date, 
on the basis of what documentation does the organization seeking 
eligibility claim that it has been in business for the requisite period 
of time?
________________________________________________________________________
(Identify, and forward copies as an Attachment to this Statement).
    4. Section 136(d)(1): ``The term `United States person' means a 
person which--(D) has performed within the United States or overseas 
security services similar in complexity to the contract being bid.''
    Definitions for purposes of Section 136 determination of 
eligibility--
    Complexity means the physical size or extent of the effort, as 
described in Section B and Exhibit A of this solicitation; combined with 
the required quality of the effort as described in Sections C and H of 
this solicitation.
    Overseas means within any jurisdiction that is not a part of the 
United States as defined below.
    Performed means contracts that have been fully completed by the 
prospective offeror and accepted by the other party to the transaction. 
Contracts still in progress have been performed for purposes of this 
definition if performance in complexity to the contract being bid has 
been ongoing for at least one year. Contracts need not have been with 
the U.S. Government.
    Security services means work of a kind as to fall within or compare 
closely with those described in the Statement of Work in Section C of 
this solicitation. An entity whose only security services experience was 
performed by its legally distinct parent or subsidiary organization will 
not be considered to have security services experience.
    Within the United States means within the legal geographic 
boundaries of a United States jurisdiction that is the place where the 
subject matter (e.g., services) of the contract or other arrangement was 
in fact completed. The place where the contract or other arrangement was 
negotiated or signed is not relevant to this definition.
    Question 4: Describe in an Attachment to this Statement (see 
L.1.3.5), the qualifying similar contracts or other arrangements 
performed by the prospective offeror. Provide required information on a 
sufficient number of arrangements to show that similar services have 
been performed overseas or in the United States. The description must 
consist of the following information on each arrangement, which shall be 
submitted as an Attachment to this Statement:
    Location: (city and state or country).
    Type of service: (for example, stationary guards, roving patrol, 
quick-reaction force, etc.).
    Complexity: (type of facilities guarded, and number or extent of 
facilities, number of guards, etc.).
    5. Section 136(d)(1): ``The term `United States person' means a 
person which--(E) with respect to the contract under subsection (c) of 
this section, has achieved a total business volume equal to or greater 
than the value of the project being bid in 3 years of the 5-year period 
before the date specified in subparagraph (C).''
    Definitions of purposes of Section 136 determination of 
eligibility--
    3 years of the 5-year period before the date specified in 
subparagraph (C) means the three to five calendar year period 
immediately preceding the issuance date of this solicitation.
    Total business volume means the U.S. dollar value of the gross 
income or receipts reported by the prospective offeror on its annual 
federal income tax returns.
    Years means calendar years.
    Question 5: Describe in an Attachment to this Statement (see 
L.1.3.5), for at least three of the five twelve-month income tax periods 
(fiscal years) defined below, the gross receipts of the organization 
seeking eligibility.
    (i) The fiscal year ending during the calendar year that includes 
the date of this solicitation.
    (ii) The fiscal year ending in the calendar year immediately prior 
to the calendar year that includes the date of this solicitation.
    (iii) The fiscal year ending in the calendar year two years before 
the calendar year that includes the date of this solicitation.
    (iv) The fiscal year ending in the calendar year three years before 
the calendar year that includes the date of this solicitation.

[[Page 386]]

    (v) The fiscal year ending in the calendar year four years before 
the calendar year that includes the date of this solicitation.
    An entity will be deemed to have met this requirement if the total 
cumulative business volume for the three years presented exceeds the 
contract price at time of award under this solicitation for the full 
term for which prices are solicited, including any option periods.
    6. Section 136(d)(1): ``The term `United States person' means a 
person which `` (F)(i) employs United States citizens in at least 80 
percent of its principal management positions in the United States; and 
(F)(ii) employs United States citizens in more than half of its 
permanent full-time positions in the United States.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Full-time (positions) means those personnel positions in which the 
occupants are expected to and ordinarily work for 40 or more hours per 
week.
    In the United States refers to those personnel positions that are 
encumbered as of the date of this solicitation and that the prospective 
offeror maintains in geographic locations within the jurisdictions 
defined above as constituting the United States.
    Permanent (positions) means personnel positions that are intended to 
be indefinite as to length of employment, as opposed to limited, 
seasonal, or project-length personnel appointments.
    Permanent, full-time positions means that portion of the prospective 
offeror's workforce that continues to be employed without regard to the 
ordinary fluctuations of production or projects.
    Principal management positions means those personnel positions 
including at least the chief executive officer (if any) and the chief 
operating officer (whether by title or by function) of the organization 
seeking eligibility, together with all those management officials who 
constitute the highest levels of management authority within the 
organization. In the case of a partnership, all general partners are 
deemed to hold principal management positions. In the case of a 
corporation, those officers of the corporation who are principally 
responsible for the day-to-day operation of the corporation. Members of 
corporation boards of directors do not occupy ``principal management 
positions'' simply by virtue of their service on the board. In all 
cases, the term ``principal management positions'' also includes the 
position or positions held by the individual or individuals in the 
United States who will have primary corporate management oversight 
responsibility for this contract if the prospective contractor is 
awarded the contract.
    United States citizen means natural persons with United States 
citizenship by virtue either of birth or of naturalization.
    Question 6(a): The organization seeking eligibility shall list all 
of its principal management positions and identify the current occupant 
of each listed position by name and citizenship. Provide the information 
as an Attachment to this Statement in the following format:
    (i) Principal management positions in the United States:
Chief Executive Officer (if any):
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
Chief Operating Officer:
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
    (ii) For each additional corporate officer having principal 
responsibility for the day-to-day operations of the corporation, list 
position, name, and citizenship.
________________________________________________________________________
Position:
________________________________________________________________________
Name:
________________________________________________________________________
Citizenship:
    (iii) Individual(s) in the United States expected to have primary 
management oversight responsibility for contract if it is awarded:
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
    Question 6(b): Number of permanent, full-time, currently encumbered 
personnel positions that are located in the United States (good faith 
estimates acceptable): ----------
    Question 6(c): Number of United States citizens currently employed 
in permanent, full-time positions that are located in the United States 
(good faith estimates acceptable): ----------
    7. Section 136(d)(1): ``The term `United States person' means a 
person which--(G) has the existing technical and financial resources in 
the United States to perform the contract.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Existing technical and financial resources means technical and 
financial capability within the United States to mobilize adequate 
staffing, equipment and organizational arrangements to perform the 
contract. Adequate technical resources may be demonstrated by presenting 
an organization chart, and r[eacute]sum[eacute]s of current officers and 
employees in the United States who possess skills and expertise 
necessary to provide management and oversight of the work. Other indicia 
will be considered if offered to demonstrate that the prospective 
offeror has

[[Page 387]]

available resources in the United States adequate to provide home office 
management and oversight of the work. Adequate financial resources may 
be demonstrated by proof of possession of a combination of net worth, 
bank lines of credit, or bank guarantees. If lines of credit or bank 
guarantees are used to demonstrate adequate financial resources, they 
must be from entities within the United States.
    Question 7: Submit, as an Attachment to this Statement, materials 
demonstrating existing technical and financial resources in the United 
States (see L.1.3.5).
    8. Section 136(d)(2): ``The term `qualified United States joint 
venture person' means a joint venture in which a United States person or 
persons owns at least 51 percent of the assets of the joint venture.''
    Definitions for purposes of Section 136 determinations of 
eligibility--
    Assets means tangible and intangible things of value conveyed or 
made available to the joint venture by the co-venturers. To be qualified 
for U.S. preference, 51 percent of the assets of the joint venture must 
be owned by the U.S. person co-venturer(s).
    Joint venture means a formal or de facto association of two or more 
persons or entities to carry out a single business enterprise for 
profit, for which purpose they combine their property, money, effects, 
skills, and knowledge. To be acceptable, all members of a joint venture 
must be jointly and severally liable for full performance and resolution 
of matters arising out of the contract.
    Question 8(a): The prospective offeror is is not a joint venture.
    Question 8(b): If the prospective offeror is a joint venture, the 
U.S. person participant is:
________________________________________________________________________
(name)
________________________________________________________________________
(address)
    Question 8(c): If the prospective offeror is a joint venture, the 
names and countries of citizenship for all co-venturers are as follows:
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
________________________________________________________________________
(name)
________________________________________________________________________
(citizenship)
    Question 8(d): If the prospective offeror is a joint venture, the 
U.S. person will own at least 51 percent of the assets of the joint 
venture.
________________________________________________________________________
I so certify: (name)
________________________________________________________________________
(position)
________________________________________________________________________
(title)
    (e) Signature: By signing this document, the offeror indicates that 
to the best of his or her knowledge, all of the representations and 
certifications provided in response to the questions contained in this 
Statement of Qualifications are accurate, current, and complete and that 
the offeror is aware of the penalty prescribed in 18 U.S.C. 1001 for 
making false statements.
________________________________________________________________________

                           (End of provision)

[69 FR 19343, Apr. 13, 2004]



Sec. 652.239-70  Information Technology Security Plan and Accreditation.

    As prescribed in 639.107-70(a), insert the following provision:

    Information Technology Security Plan and Accreditation (SEP 2007)

    All offers/bids submitted in response to this solicitation must 
address the approach for completing the security plan and certification 
and accreditation requirements as required by the clause at 652.239-71, 
Security Requirements for Unclassified Information Technology Resources.

                           (End of provision)

[72 FR 51569, Sept. 10, 2007]



Sec. 652.239-71  Security Requirements for Unclassified Information 

Technology Resources.

    As prescribed in 639.107-70(b), insert the following clause:

Security Requirements for Unclassified Information Technology Resources 
                               (SEP 2007)

    (a) General. The Contractor shall be responsible for information 
technology (IT) security, based on Department of State (DOS) risk 
assessments, for all systems connected to a Department of State (DOS) 
network or operated by the Contractor for DOS, regardless of location. 
This clause is applicable to all or any part of the contract that 
includes information technology resources or services in which the 
Contractor has physical or electronic access to DOS's information that 
directly supports the mission of DOS. The term ``information 
technology'', as used in this clause, means any equipment, including 
telecommunications equipment, that is used

[[Page 388]]

in the automatic acquisition, storage, manipulation, management, 
movement, control, display, switching, interchange, transmission, or 
reception of data or information. This includes both major applications 
and general support systems as defined by OMB Circular A-130. Examples 
of tasks that require security provisions include:
    (1) Hosting of DOS e-Government sites or other IT operations;
    (2) Acquisition, transmission or analysis of data owned by DOS with 
significant replacement cost should the Contractor's copy be corrupted; 
and
    (3) Access to DOS general support systems/major applications at a 
level beyond that granted the general public; e.g., bypassing a 
firewall.
    (b) IT Security Plan. The Contractor shall develop, provide, 
implement, and maintain an IT Security Plan. This plan shall describe 
the processes and procedures that will be followed to ensure appropriate 
security of IT resources that are developed, processed, or used under 
this contract. The plan shall describe those parts of the contract to 
which this clause applies. The Contractor's IT Security Plan shall 
comply with applicable Federal laws that include, but are not limited 
to, 40 U.S.C. 11331, the Federal Information Security Management Act 
(FISMA) of 2002, and the E-Government Act of 2002. The plan shall meet 
IT security requirements in accordance with Federal and DOS policies and 
procedures, as they may be amended from time to time during the term of 
this contract that include, but are not limited to:
    (1) OMB Circular A-130, Management of Federal Information Resources, 
Appendix III, Security of Federal Automated Information Resources;
    (2) National Institute of Standards and Technology (NIST) Guidelines 
(see NIST Special Publication 800-37, Guide for the Security 
Certification and Accreditation of Federal Information Technology 
Systems (http://csrc.nist.gov/publications/nistpubs/800-37/SP800-37-
final.pdf)); and
    (3) Department of State information security sections of the Foreign 
Affairs Manual (FAM) and Foreign Affairs Handbook (FAH) (http://
foia.state.gov/Regs/Search.asp), specifically:
    (i) 12 FAM 230, Personnel Security;
    (ii) 12 FAM 500, Information Security (sections 540, 570, and 590);
    (iii) 12 FAM 600, Information Security Technology (section 620, and 
portions of 650);
    (iv) 5 FAM 1060, Information Assurance Management; and
    (v) 5 FAH 11, Information Assurance Handbook.
    (c) Submittal of IT Security Plan. Within 30 days after contract 
award, the Contractor shall submit the IT Security Plan to the 
Contracting Officer and Contracting Officer's Representative (COR) for 
acceptance. This plan shall be consistent with and further detail the 
approach contained in the contractor's proposal or sealed bid that 
resulted in the award of this contract and in compliance with the 
requirements stated in this clause. The plan, as accepted by the 
Contracting Officer and COR, shall be incorporated into the contract as 
a compliance document. The Contractor shall comply with the accepted 
plan.
    (d) Accreditation. Within six (6) months after contract award, the 
Contractor shall submit written proof of IT security accreditation for 
acceptance by the Contracting Officer. Such written proof may be 
furnished either by the Contractor or by a third party. Accreditation 
must be in accordance with NIST Special Publication 800-37. This 
accreditation will include a final security plan, risk assessment, 
security test and evaluation, and disaster recovery plan/continuity of 
operations plan. This accreditation, when accepted by the Contracting 
Officer, shall be incorporated into the contract as a compliance 
document, and shall include a final security plan, a risk assessment, 
security test and evaluation, and disaster recovery/continuity of 
operations plan. The Contractor shall comply with the accepted 
accreditation documentation.
    (e) Annual verification. On an annual basis, the Contractor shall 
submit verification to the Contracting Officer that the IT Security Plan 
remains valid.
    (f) Warning notices. The Contractor shall ensure that the following 
banners are displayed on all DOS systems (both public and private) 
operated by the Contractor prior to allowing anyone access to the 
system:

                           Government Warning

                      **WARNING**WARNING**WARNING**

    Unauthorized access is a violation of U.S. law and Department of 
State policy, and may result in criminal or administrative penalties. 
Users shall not access other user's or system files without proper 
authority. Absence of access controls IS NOT authorization for access! 
DOS information systems and related equipment are intended for 
communication, transmission, processing and storage of U.S. Government 
information. These systems and equipment are subject to monitoring by 
law enforcement and authorized Department officials. Monitoring may 
result in the acquisition, recording, and analysis of all data being 
communicated, transmitted, processed or stored in this system by law 
enforcement and authorized Department officials. Use of this system 
constitutes consent to such monitoring.

[[Page 389]]

                      **WARNING**WARNING**WARNING**

    (g) Privacy Act notification. The Contractor shall ensure that the 
following banner is displayed on all DOS systems that contain Privacy 
Act information operated by the Contractor prior to allowing anyone 
access to the system:
    This system contains information protected under the provisions of 
the Privacy Act of 1974 (Pub. L. 93-579). Any privacy information 
displayed on the screen or printed shall be protected from unauthorized 
disclosure. Employees who violate privacy safeguards may be subject to 
disciplinary actions, a fine of up to $5,000, or both.
    (h) Privileged or limited privileged access. Contractor personnel 
requiring privileged access or limited privileged access to systems 
operated by the Contractor for DOS or interconnected to a DOS network 
shall adhere to the specific contract security requirements contained 
within this contract and/or the Contract Security Classification 
Specification (DD Form 254).
    (i) Training. The Contractor shall ensure that its employees 
performing under this contract receive annual IT security training in 
accordance with OMB circular A-130, FISMA, and NIST requirements, as 
they may be amended from time to time during the term of this contract, 
with a specific emphasis on rules of behavior.
    (j) Government access. The Contractor shall afford the Government 
access to the Contractor's and subcontractor's facilities, 
installations, operations, documentation, databases and personnel used 
in performance of the contract. Access shall be provided to the extent 
required to carry out a program of IT inspection (to include 
vulnerability testing), investigation and audit to safeguard against 
threats and hazards to the integrity, availability and confidentiality 
of DOS data or to the function of information technology systems 
operated on behalf of DOS, and to preserve evidence of computer crime.
    (k) Subcontracts. The Contractor shall incorporate the substance of 
this clause in all subcontracts that meet the conditions in paragraph 
(a) of this clause.
    (l) Notification regarding employees. The Contractor shall 
immediately notify the Contracting Officer when an employee either 
begins or terminates employment when that employee has access to DOS 
information systems or data.
    (m) Termination. Failure on the part of the Contractor to comply 
with the terms of this clause may result in termination of this 
contract.

                             (End of clause)

[72 FR 51569, Sept. 10, 2007]



Sec. 652.242-70  Contracting Officer's Representative (COR).

    As prescribed in 642.272(a), insert a clause substantially the same 
as follows:

          Contracting Officer's Representative (COR) (AUG 1999)

    (a) The Contracting Officer may designate in writing one or more 
Government employees, by name and position title, to take action for the 
Contracting Officer under this contract. Each designee shall be 
identified as a Contracting Officer's Representative (COR). Such 
designation(s) shall specify the scope and limitations of the authority 
so delegated; provided, that the designee shall not change the terms or 
conditions of the contract, unless the COR is a warranted Contracting 
Officer and this authority is delegated in the designation.
    (b) The COR is [insert job title of COR].

                             (End of clause)

[53 FR 26177, July 11, 1988, as amended at 59 FR 66772, Dec. 28, 1994; 
64 FR 43634, Aug. 11, 1999; 69 FR 19345, Apr. 13, 2004]



Sec. 652.242-71  Notice of Shipments.

    As prescribed in 642.1406-2-70(a), insert the following clause:

                     Notice of Shipments (JUL 1988)

    At the time of delivery of supplies to a carrier for onward 
transportation, the Contractor shall give notice of prepaid shipment to 
the consignee establishment, and to such other persons as instructed by 
the Contracting Officer. If the Contractor has not received such 
instructions by 24 hours prior to the delivery time, the Contractor 
shall contact the Contracting Officer and request instructions from the 
Contracting Officer concerning the notice of shipment to be given.

                             (End of clause)

[53 FR 26177, July 11, 1988, as amended at 64 FR 43634, Aug. 11, 1999]



Sec. 652.242-72  Shipping Instructions.

    As prescribed in 642.1406-2-70(b), insert the following clause:

                    Shipping Instructions (DEC 1994)

    (a) Each packing box shall be of solid construction in accordance 
with best commercial practices and sufficiently strong in direct ratio 
to the weight of the contents to withstand excessively rough handling 
while in transit overseas. It shall be constructed of lumber that is 
well seasoned, reasonably

[[Page 390]]

sound, free from bad cross grain and from knots or knotholes that 
interfere with nailing or that occupy more than \1/3\ of the width of 
the piece of lumber. Box shall be constructed with three-way corners and 
diagonal bracing. All nails shall be cement-coated, of correct size and 
properly spaced to avoid splitting or warping, and shall be driven into 
the grain of the wood. Dimension of lumber shall be in accordance with 
the following table, dependent upon the weight of the contents:

------------------------------------------------------------------------
                                        Minimum dimensions of lumber for
      Weight of box and contents           struts, frame members, and
                                             single diagonal braces
------------------------------------------------------------------------
Up to 45 kg...........................  19.05 x 57.15mm
46 to 113 kg..........................  22.23 x 73.03mm
114 to 181 kg.........................  22.23 x 98.43mm
182 to 272 kg.........................  22.23 x 123.83mm or 25.4 x 98.43
                                         mm
------------------------------------------------------------------------

    (b) Each box shall be lined with waterproof paper and shall be bound 
with 19.05mm steel straps firmly stapled in position to 
prevent the straps from slipping off the box. Articles must be secured 
and braced inside the shipping container to prevent the articles from 
shifting.
    (c) Packing cases weighing 453.5kg and more must be equipped with 
skids. Each skid shall consist of two end sections of 50.8 x 152.4mm 
lumber placed flat and a center section of 50.8 x 101.6mm lumber placed 
flat and then arranged in line to provide 254mm forklift spaces between 
center and end sections. When goods are ready for shipment, the 
Contractor shall prepare four (4) copies of a packing list, indicating 
the contract and, if applicable, order numbers; case number; itemized 
list of contents; net and gross weights in kilograms; and outside 
dimensions, including all clears, of each shipping container. The 
Contractor shall provide three (3) copies of the packing list to the 
U.S. Despatch Agent as specified in the contract or order. The 
Contractor shall place the fourth copy of the packing list in packing 
case number one, which shall be marked as such so that it is easily 
identified by the consignee. Upon receipt of the packing list, the 
Despatch Agent will furnish export marks and instructions regarding 
shipment to the port specified, depending upon steamer services 
available at the time.
    (d) The export marks shall be stenciled on one side of each box 
reserved for that purpose, and the appropriate case number stenciled in 
the lower left-hand corner of the same side. The contract and, as 
necessary, order numbers, net and gross weights in kilograms shall be 
stenciled on the same side. However, if the size of the box is too small 
to accommodate all stenciling on one side, the contract and order 
numbers and weights may be stenciled on the side opposite that used for 
the export marks and case number.
    (e) The contract and, as necessary, order numbers must appear on all 
containers and papers relating to this clause.

                             (End of clause)

[53 FR 26177, July 11, 1988; 53 FR 36462, Sept. 20, 1988, as amended at 
59 FR 66772, Dec. 28, 1994; 64 FR 43634, Aug. 11, 1999]



Sec. 652.242-73  Authorization and Performance.

    As prescribed in 642.272(b), insert a clause substantially the same 
as follows:

                Authorization and Performance (AUG 1999)

    (a) The contractor warrants the following:
    (1) That is has obtained authorization to operate and do business in 
the country or countries in which this contract will be performed;
    (2) That is has obtained all necessary licenses and permits required 
to perform this contract; and,
    (3) That it shall comply fully with all laws, decrees, labor 
standards, and regulations of said country or countries during the 
performance of this contract.
    (b) If the party actually performing the work will be a 
subcontractor or joint venture partner, then such subcontractor or joint 
venture partner agrees to the requirements of paragraph (a) of this 
clause.

                             (End of clause)

    Alternate I (AUG 1999). If the contract is for overseas local guard 
services, as prescribed in 642.272(b), substitute the following 
paragraphs (a)(1) and (a)(2) for paragraphs (a)(1) and (a)(2) of the 
basic clause:

    (a)(1) That it has obtained authorization to operate and do business 
in the country or countries in which this contract will be performed, or 
will obtain such authorization before performance of this contract 
begins;
    (a)(2) That it has obtained all necessary licenses and permits 
required to perform this contract, or will obtain such licenses and 
permits before performance of this contract begins;

[64 FR 43634, Aug. 11, 1999, as amended at 69 FR 19345, Apr. 13, 2004]



Sec. 652.243-70  Notices.

    As prescribed in 643.104-70, insert the following clause:

                           Notices (AUG 1999)

    Any notice or request relating to this contract given by either 
party to the other shall

[[Page 391]]

be in writing. Said notice or request shall be mailed or delivered by 
hand to the other party at the address provided in the schedule of the 
contract. All modifications to the contract must be made in writing by 
the contracting officer.

                             (End of clause)

[64 FR 43634, Aug. 11, 1999]

                             PART 653_FORMS

Sec.

Sec. 653.000 Scope of part.

                          Subpart 653.1_General


Sec. 653.101 Requirements for use of forms.

Sec. 653.101-70 Policy.

Sec. 653.110 Continuation sheets.

                   Subpart 653.2_Prescription of Forms


Sec. 653.200 Scope of subpart.

Sec. 653.213 Simplified acquisition procedures (SF's 18, 30, 44, 1165, 
          OF's 347, 348).

Sec. 653.217 Special contracting methods.

Sec. 653.217-70 DOS form DS-1921, Award/Modification of Interagency 
          Acquisition Agreement.

Sec. 653.219 Small business programs.

Sec. 653.219-70 DOS form DS-1910, Small Business Agency Review--Actions 
          Above the Simplified Acquisition Threshold.

Sec. 653.219-71 DOS form DS-4053, Department of State Mentor-
          Prot[eacute]g[eacute] Program Application.

    Authority: 40 U.S.C. 486(c); 22 U.S.C. 2658.

    Source: 53 FR 26180, July 11, 1988, unless otherwise noted.



Sec. 653.000  Scope of part.

    This part prescribes DOSAR forms in addition to those provided in 
FAR Part 53.

                          Subpart 653.1_General



Sec. 653.101  Requirements for use of forms.



Sec. 653.101-70  Policy.

    The forms in FAR subpart 53.2 or in subpart 653.2 shall be used as 
precribed therein, except when the use of any form is prohibited by or 
inconsistent with local laws, or the supplies or services could not be 
obtained if the form were used. The contracting officer shall justify 
the exclusion of any form in accordance with FAR subpart 1.4 and 
601.470.

[53 FR 26180, July 11, 1988, as amended at 69 FR 19345, Apr. 13, 2004; 
72 FR 45696, Aug. 15, 2007]



Sec. 653.110  Continuation sheets.

    The provisions of FAR 53.110 also apply to forms prescribed in the 
DOSAR.

                   Subpart 653.2_Prescription of Forms



Sec. 653.200  Scope of subpart.

    This subpart prescribes or references optional and DOS forms for use 
in acquisition. Consistent with FAR 53.200, this subpart is arranged by 
subject matter, in the same order as and keyed to the parts of the DOSAR 
in which the form usage requirements are addressed.



Sec. 653.213  Simplified acquisition procedures (SF's 18, 30, 44, 1165, 
          OF's 347, 348).



Sec. 653.217  Special contracting methods.



Sec. 653.217-70  DOS form DS-1921, Award/Modification of Interagency 
          Acquisition Agreement.

    As prescribed in 617.504-70(b)(5)(i), DS-1921 is prescribed for use 
when awarding or modifying Economy Act Interagency Acquisition 
Agreements where the Department is the requesting agency.

[59 FR 66773, Dec. 28, 1994]



Sec. 653.219  Small business programs.



Sec. 653.219-70  DOS form DS-1910, Small Business Agency Review--Actions 

Above the Simplified Acquisition Threshold.

    As prescribed in 619.501(c), DS-1910 is prescribed for use in 
documenting set-aside decisions.

[64 FR 43634, Aug. 11, 1999]



Sec. 653.219-71  DOS form DS-4053, Department of State Mentor-

Prot[eacute]g[eacute] Program Application.

    As prescribed in 619.102-70(i), DS-4053 is prescribed for use in 
applying for an

[[Page 392]]

agreement under the Department of State Mentor-Prot[eacute]g[eacute] 
Program.

[69 FR 19345, Apr. 13, 2004]


[[Page 393]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 395]]



                    Table of CFR Titles and Chapters




                     (Revised as of October 1, 2007)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100--
                199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        VI  Department of State (Parts 600--699)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

[[Page 396]]

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600--3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
      XXXV  Office of Personnel Management (Parts 4500--4599)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)

[[Page 397]]

     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)

[[Page 398]]

        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)

[[Page 399]]

   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)

[[Page 400]]

       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)

[[Page 401]]

      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

[[Page 402]]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

[[Page 403]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

[[Page 404]]

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)

[[Page 405]]

        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)

[[Page 406]]

        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)

[[Page 407]]

        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Rate Commission (Parts 3000--3099)

[[Page 408]]

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

[[Page 409]]

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)

[[Page 410]]

       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  United States Agency for International Development 
                (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)

[[Page 411]]

        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees' 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        35  [Reserved]
        44  Federal Emergency Management Agency (Parts 4400--4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399)
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)

[[Page 412]]

       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 413]]





           Alphabetical List of Agencies Appearing in the CFR




                     (Revised as of October 1, 2007)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 414]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 415]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, II
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3

[[Page 416]]

  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5

[[Page 417]]

  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A, 2, III
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Defense Acquisition Regulations System          48, 2
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V; 42, I
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V; 42, I
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII

[[Page 418]]

Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                2, XXVII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I

[[Page 419]]

  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
   Administration
[[Page 420]]

National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII

[[Page 421]]

Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 423]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1973-1985 and 1986-2000'' published in eight separate volumes.

                                  2001

48 CFR
                                                                   66 FR
                                                                    Page
Chapter 3
Chapter 3 Revised...................................................4220
Chapter 4
419.508 Amended; eff. 11-26-01.....................................49317
442,1502 Revised; eff. 11-30-01....................................49867
452.219-70 Amended; eff. 11-26-01..................................49317

                                  2002

                       (No regulations published)

                                  2003

48 CFR
                                                                   68 FR
                                                                    Page
Chapter 5
501.106 Amended (OMB numbers)......................................41288
511 Authority citation revised.....................................24378
511.204 (c)(3) and (d) amended.....................................24378
516 Authority citation revised.....................................24378
516.506 (c) redesignated as (d); new (c) added; new (d) amended....24378
532 Authority citation revised.....................................24378
532.206 Revised....................................................24378
532.7003 (b) revised; (c) added....................................24378
538 Authority citation revised.....................................24378
538.272 (a) amended................................................24378
538.273 (a)(2) introductory text revised; (b)(2) amended...........24378
    (b)(1) revised; (b)(3) removed.................................41288
    (a)(3) revised.................................................52128
538.7000--538.7004 (Subpart 538.70) Added..........................24378
546 Authority citation revised.....................................24378
546.710 (b) amended................................................24379
552 Authority citation revised.....................................24378
552.211-75 Amended.................................................24379
552.211-77 Amended.................................................24379
552.212-71 Amended.................................................41288
552.212-72 Amended..........................................41288, 52128
552.215-71 Amended.................................................41288
552.216-72 Amended.................................................24380
552.232-8 Amended..................................................24380
552.232-79 Added...................................................24380
552.232-81 Added...................................................24380
552.232-82 Added...................................................24380
552.232-83 Added...................................................24380
552.238-71 Amended.................................................24381
552.238-72 Revised.................................................52128
552.238-74 Revised.................................................41288
552.238-75 Amended.................................................24381
552.238-76 Removed.................................................41289
552.238-77 Added...................................................24381
552.238-78 Added...................................................24381
552.238-79 Added...................................................24381
    Amended........................................................41289
552.246-73 Amended.................................................24382

                                  2004

48 CFR
                                                                   69 FR
                                                                    Page
Chapter 5
504.602-71 (Subpart 504.6) Added; interim..........................77662
511.204 (c)(3) and (d) amended.....................................28065
511.600--511.604 (Subpart 511.6) Added.............................55934
516.506 (c) amended................................................28065
532.206 (a) and (b) amended........................................28065
532.7003 (b) and (c) amended.......................................28065
538.273 (a)(2) and (b)(2) amended..................................28065

[[Page 424]]

538.7000 Amended...................................................28065
538.7001 Amended...................................................28065
538.7002 (c) amended...............................................28065
538.7003 Introductory text amended.................................28065
538.7004 (a), (b) and (c) amended..................................28065
546.710 (b) amended................................................28065
552.211-15 Added...................................................55935
552.216-72 Alternate III amended...................................28065
552.238-75 Clause amended..........................................28065
552.238-78 Clause amended..........................................28065
552.238-79 Clause amended..........................................28066
552.270-2 Revised..................................................55938
Chapter 6
601.105-3 Revised..................................................19329
601.106 Amended....................................................19329
601.603-1 Added....................................................19329
601.603-3 (d) revised..............................................19330
601.603-70 (a) revised; (b)(6) amended.............................19330
602.101-70 Amended.................................................19330
603.104-4 Redesignated from 603.104-5..............................19330
603.104-5 Redesignated as 603.104-4................................19330
603.104-7 Redesignated from 603.104-10; (d)(2)(ii)(B) amended......19330
603.104-10 Redesignated as 603.104-7...............................19330
603.204 (b) revised; (c) removed...................................19330
603.601 (a) amended................................................19331
603.804 (Subpart 603.8) Added......................................19331
604.502 (Subpart 604.5) Revised....................................19331
605.202-70 (a) and (b) amended; (d) revised........................19331
605.207-70 Amended.................................................19331
605.303 (a) amended................................................19331
606.302-6 (c)(1)(i), (ii) and (2) amended..........................19331
606.370 (b) amended................................................19331
606.501 (b) amended................................................19331
606.501-70 Amended.................................................19331
609.404-70 Added...................................................19331
609.405 (d) introductory text, (1)(i), (4)(i) and (ii) removed; 
        (d)(3) added...............................................19331
609.406-3 (a)(1) amended...........................................19331
611.600-611.603 (Subpart 611.6) Added..............................19332
612 Added..........................................................19332
613.303-5 (b) added................................................19332
616.505 (b)(5) correctly designated................................19332
617.204 (e) amended................................................19332
617.504-70 (a) and (b) amended.....................................19332
619.201 Revised....................................................19333
619.202 Added......................................................19333
619.705--619.708-70 (Subpart 619.7) Heading revised................19335
619.705-1 Revised..................................................19335
619.705-3 Revised..................................................19335
619.705-4 Revised..................................................19335
619.705-6-70 (b) amended...........................................19335
619.708-70 Amended.................................................19335
619.801 Removed....................................................19335
619.805-2 (a)(2) added.............................................19335
622.1303--622.1308 (Subpart 622.13) Heading revised................19335
622.1303 Redesignated as 622.1305..................................19335
622.1305 Redesignated from 622.1303 and amended....................19335
622.1308 Redesignated as 622.1310..................................19336
622.1310 Redesignated from 622.1308 and amended....................19336
622.1503 (Subpart 622.15) Added....................................19336
623 Heading revised................................................19336
623.104--623.107 (Subpart 623.1) Removed...........................19336
623.400 Amended....................................................19336
623.404 Revised....................................................19336
625.102 Removed....................................................19336
625.103 Added......................................................19336
625.105 Revised....................................................19336
625.108 Removed....................................................19336
625.202 Revised....................................................19336
625.203 Removed....................................................19336
625.204 Revised....................................................19336
625.300--625.304 (Subpart 625.3) Removed...........................19336
625.703 (Subpart 625.7) Removed....................................19336
626 Removed........................................................19336
628.203 (g) amended................................................19336
628.7001 (Subpart 628.70) Removed..................................19336
630 Added..........................................................19336
632.006-2 Amended..................................................19336
632.402--632.407 (Subpart 632.4) Heading revised...................19336
632.903 Removed....................................................19336
632.906 Added......................................................19336
636.101-70 Revised.................................................19337
636.104 Added......................................................19337
636.104-70 Added...................................................19337
636.104-71 Added...................................................19337
636.202 Added......................................................19337
636.513 (a) amended................................................19337

[[Page 425]]

636.570 Added......................................................19337
636.602-4 Removed..................................................19337
637.102 Added......................................................19337
637.102-70 Added...................................................19337
637.104-70 (f) amended.............................................19337
637.110 (d) added..................................................19337
637.601 (Subpart 637.6) Added......................................19337
642.271 Redesignated as 642.272; new 642.271 added.................19338
642.272 Redesignated from 642.271..................................19338
642.1503--642.1503-70 (Subpart 642.15) Added.......................19338
651.701 (c) amended................................................19338
652.216-70 Clause amended..........................................19338
652.219-70 Revised.................................................19338
652.219-72 Added...................................................19338
652.219-73 Added...................................................19338
652.226-70 Removed.................................................19338
652.228-70 Removed.................................................19339
652.236-70 Clause amended..........................................19339
652.236-71 Added...................................................19339
652.236-72 Added...................................................19339
652.237-71 Revised.................................................19342
652.237-72 Clause amended..........................................19343
652.237-73 Added...................................................19343
652.242-70 Clause amended..........................................19345
652.242-73 Clause and Alternate 1 amended..........................19345
653.101-70 Amended.................................................19345
653.219-71 Added...................................................19345
653.300-653.303 (Subpart 653.3) Removed............................19346

                                  2005

48 CFR
                                                                   70 FR
                                                                    Page
Chapter 3
300--399 (Chapter 3) Nomenclature changes.............................39
302.101 Amended.......................................................39
303.104-7 Added.......................................................39
304.7001 (b) revised..................................................39
    (a) introductory text revised; (c) and (d) redesignated as (d) 
and (e); new (c) added.............................................11583
306.501 Amended.......................................................40
307.170-2 (a)(3) redesignated as (a)(4); new (a)(3) added.............40
307.7105 (a)(6) amended...............................................40
317.204 Added.........................................................40
    Correctly added................................................11583
324.000 Redesignated from 324.100.....................................40
324.100 Redesignated as 324.000 and revised...........................40
333.215-70 Added......................................................40
334.003 Amended.......................................................40
352.224-70 Clause amended......................................41, 11583
352.270-8 Clause amended..............................................41
352.270-9 Clause amended..............................................41
352.333-7001 Added....................................................41
Chapter 4
401 Effective date confirmed.......................................16145
401.105-1 (b) and (c) revised.........................................44
401.170 Amended.......................................................44
401.201-1 (b) revised.................................................44
401.301 (b)(4) amended................................................44
401.371 (d) added.....................................................44
403 Effective date confirmed.......................................16145
403.104-7 Redesignated from 403.104-10................................44
403.104-10 (a) designation and (b) removed; redesignated as 
        403.104-7.....................................................44
403.405 Redesignated from 403.409.....................................44
403.409 (a) amended; redesignated as 403.405..........................44
403.502 Amended.......................................................44
404 Effective date confirmed.......................................16145
404.203 (Subpart 404.2) Added.........................................44
404.403 Revised.......................................................44
404.601 Removed.......................................................44
404.602 Revised.......................................................44
404.870 (Subpart 404.8) Revised.......................................44
404.1103 (Subpart 404.11) Added.......................................44
405 Effective date confirmed.......................................16145
405.403 Amended.......................................................45
405.404-1 (b) revised.................................................45
406 Effective date confirmed.......................................16145
406.501 Revised.......................................................45
407 Effective date confirmed.......................................16145
407.170 Revised.......................................................45
407.302 (Subpart 407.3) Removed.......................................45
408 Effective date confirmed.......................................16145
408.701--408.714 (Subpart 408.7) Nomenclature change..................45
408.701 Revised.......................................................45
408.705 Amended.......................................................45
408.1103 Revised......................................................45
410 Effective date confirmed.......................................16145
410 Added.............................................................45
411 Effective date confirmed.......................................16145
411.101 Added.........................................................45
411.105 Redesignated as 411.106.......................................45
411.106 Redesignated from 411.105.....................................45
413 Effective date confirmed.......................................16145
413.307 Revised.......................................................45
414 Effective date confirmed.......................................16145

[[Page 426]]

414.409-2 Revised.....................................................45
415 Effective date confirmed.......................................16145
415.207 (d) amended...................................................46
416 Effective date confirmed.......................................16145
416.505 (a) and (b) revised...........................................46
419 Effective date confirmed.......................................16145
419.201--419.201-73 (Subpart 419.2) Revised...........................46
419.508 Heading amended...............................................46
419.602--419.602-3 (Subpart 419.6) Heading amended....................46
422 Effective date confirmed.......................................16145
422.604-2 Amended.....................................................46
422.807 Amended.......................................................46
422.1303--422.1306 (Subpart 422.13) Revised...........................46
422.1403--422.1406 (Subpart 422.14) Heading amended...................47
422.1403 (a) amended..................................................47
423 Revised...........................................................47
    Effective date confirmed.......................................16145
424 Effective date confirmed.......................................16145
424.203 Revised.......................................................48
425 Effective date confirmed.......................................16145
425.102--425.108 (Subpart 425.1) Revised..............................48
425.202 Heading and (a) amended.......................................48
425.302--425.304 (Subpart 425.3) Removed..............................48
425.402 (Subpart 425.4) Removed.......................................48
425.602 (Subpart 425.6) Added.........................................48
425.901 (Subpart 425.9) Removed.......................................48
425.1001 (Subpart 425.10) Revised.....................................48
426 Effective date confirmed.......................................16145
426.7000--426.7009 (Subpart 426.70) Removed...........................48
428 Effective date confirmed.......................................16145
428.101--428.106-6 (Subpart 428.1) Heading revised....................48
428.203--428.204-2 (Subpart 428.2) Heading revised....................48
432 Effective date confirmed.......................................16145
432.007 Redesignated from 432.906.....................................48
432.904 Redesignated from 432.905.....................................48
432.905 Redesignated as 432.904; heading revised......................48
432.906 Redesignated as 432.007.......................................48
433 Nomenclature change...............................................48
    Effective date confirmed.......................................16145
433.104 Removed.......................................................49
434 Revised...........................................................49
    Effective date confirmed.......................................16145
436 Effective date confirmed.......................................16145
436.578 Removed.......................................................49
439 Added.............................................................49
    Effective date confirmed.......................................16145
445 Effective date confirmed.......................................16145
445.608--445.608-6 (Subpart 445.6) Removed............................50
450 Effective date confirmed.......................................16145
450.104 (Subpart 450.1) Removed.......................................50
452 Effective date confirmed.......................................16145
452.211-70 Amended....................................................50
452.215-71 Amended....................................................50
452.226-70 Removed....................................................50
452.226-71 Removed....................................................50
452.226-72 Removed....................................................50
452.232-70 Clause amended.............................................50
452.236-78 Removed....................................................50
453 Effective date confirmed.......................................16145
453.213 Revised.......................................................50
Chapter 5
501 Authority citation revised.....................................15779
501.403 (a) and (c) revised........................................15779
501.404 (a), (c) and (e)(2) revised................................15780
501.404-70 Added...................................................15780
501.404-71 Added...................................................15780
533.215 Added........................................................299
552.219-71 Introductory text and clause amended....................32522
    Clause amended.................................................32523
552.219-72 Introductory text and clause amended....................32522
    Clause amended.................................................32523
552.219-73 Introductory text, clause and Alternate 1 amended.......32522
    Clause amended.................................................32523
552.233-71 Added.....................................................299

                                  2006

48 CFR
                                                                   71 FR
                                                                    Page
Chapter 3
301.101 (b) revised................................................76488
301.270 Revised....................................................76488
301.403 Revised....................................................76489
301.404 Revised....................................................76489
301.470 (a) revised................................................76489
301.602-3 (b)(3), (e)(1) and (2) revised...........................76489
301.603 Revised....................................................76489
301.603-1 Revised..................................................76489

[[Page 427]]

301.603-2 Revised..................................................76490
301.603-3 Revised..................................................76490
301.603-4 Revised..................................................76490
301.603-70 Revised.................................................76490
301.603-71 Added...................................................76490
301.603-72 Added...................................................76490
301.603-73 Added...................................................76490
301.603-74 Added...................................................76490
301.603-75 Added...................................................76490
301.603-76 Added...................................................76490
302.101 Revised....................................................76491
302.201 Revised....................................................76492
303.101-3 Revised..................................................76492
303.104-7 (a)(2)(i) revised........................................76492
303.303 Revised....................................................76492
303.405 Revised....................................................76492
303.704 Revised....................................................76492
304.602 Revised....................................................76492
304.804-70 (a) and (b)(1) revised..................................76493
304.7001 (b)(3), (6) and (e) revised...............................76493
305.202 Revised....................................................76493
305.303 Revised....................................................76493
305.502 Revised....................................................76493
306.302-1 Revised..................................................76493
306.303-1 Revised..................................................76493
306.303-2 Revised..................................................76494
306.304 Revised....................................................76494
306.501 Revised....................................................76494
307.104 Revised....................................................76494
307.170 Revised....................................................76495
307.170-1 Revised..................................................76495
307.170-3 Added....................................................76495
307.170-4 Added....................................................76495
307.170-5 Added....................................................76495
307.170-6 Added....................................................76495
307.170-7 Added....................................................76495
307.170-8 Added....................................................76495
307.170-9 Added....................................................76495
307.302--307.307 (Subpart 307.3) Removed...........................76496
307.7001 (b)(2) revised............................................76496
307.7104 Revised...................................................76496
307.7105 Introductory text, (b)(4) introductory text, (i) and (7) 
        revised....................................................76496
307.7106 (a) and (d) revised.......................................76496
309.403 Revised....................................................76497
309.404 Revised....................................................76497
309.405 (a)(1) revised.............................................76497
309.406-3 Revised..................................................76497
309.407-3 Revised..................................................76497
309.470-1 Introductory text revised................................76498
311 Added..........................................................76498
312 Added..........................................................76498
314.202-7 Revised..................................................76498
314.213 Removed....................................................76498
314.404-1 Revised..................................................76498
314.407-3 Revised..................................................76498
314.407-4 (d) revised..............................................76498
315.204-1 Added....................................................76498
315.204-5 Removed..................................................76498
315.209 (g) removed................................................76498
315.305 (a)(1), (3)(i)(D), (ii)(B), (E)(1) introductory text, (4), 
        (F)(2) and (3) revised.....................................76498
315.371 (a) introductory text revised..............................76499
315.372 Introductory text and (a) revised..........................76499
315.404-4 (b)(1), (ii) introductory text, (c), (d)(1)(i), (ii), 
        (iv) introductory text and (3)(iv) revised.................76499
315.606 (b) revised................................................76500
315.609 Introductory text revised..................................76500
316.505 Added......................................................76500
316.603-3 Revised..................................................76500
316.770-1 Removed..................................................76500
319.201 (e) revised................................................76500
319.501 Revised....................................................76501
323 Heading revised................................................76501
324.103 (a), (b) and (c) revised...................................76501
324.202 Redesignated as 324.203....................................76501
324.203 Redesignated from 324.202; (b) revised.....................76501
325 Removed........................................................76501
330.201-5 Revised..................................................76501
332.402 Revised....................................................76501
332.407 (d) introductory text revised..............................76501
332.501-2 Revised..................................................76501
332.702 Revised....................................................76501
332.703-1 Revised..................................................76502
332.704 Revised....................................................76502
332.705 Removed....................................................76502
332.902 Removed....................................................76502
333.102 (a) removed................................................76502
333.103 (f)(3) revised.............................................76502
333.104 Revised....................................................76502
333.203 Revised....................................................76503
333.211 Revised....................................................76503
333.212 Revised....................................................76503
333.212-70 (a) revised.............................................76503
334 Removed........................................................76503
335.070-2 Introductory text and (a) revised........................76504
339 Added..........................................................76504
342.705 Revised....................................................76504
342.7001 Revised...................................................76504

[[Page 428]]

342.7002 Revised...................................................76504
342.7003-1 Revised.................................................76505
342.7003-2 Revised.................................................76505
342.7003-3 Revised.................................................76505
342.7100 Revised...................................................76506
342.7101-2 (a) introductory text and (b)(3) revised................76506
352.202-1 Revised..................................................76506
352.215-1 Revised..................................................76506
352.215-70 Revised.................................................76506
352.216-72 Clause amended..........................................76506
352.223-70 Revised.................................................76507
352.224-70 Revised.................................................76507
352.228-7 Clause amended...........................................76507
352.232-9 Revised..................................................76507
352.232-74 Removed.................................................76508
352.232-75 Revised.................................................76508
352.233-70 Revised.................................................76508
352.249-14 Revised.................................................76508
352.270-1 Introductory text revised; clause amended................76508
352.270-2 Introductory text revised................................76508
352.270-3 Revised..................................................76508
352.270-4 Introductory text revised; table amended.................76509
352.270-5 Revised..................................................76509
352.270-6 Revised..................................................76510
352.270-7 Revised..................................................76510
352.270-8 Revised..................................................76510
352.270-9 Revised..................................................76511
352.270-10 Added...................................................76511
352.270-11 Added...................................................76511
352.270-12 Added...................................................76511
352.270-13 Added...................................................76511
352.270-14 Added...................................................76511
352.270-15 Added...................................................76511
352.270-16 Added...................................................76511
352.270-17 Added...................................................76511
352.270-18 Added...................................................76511
352.270-19 Added...................................................76511
370.102 Revised....................................................76514
370.205 (a) revised................................................76514
370.301 Revised....................................................76514
370.302 Revised....................................................76514
370.303 Revised....................................................76515
370.401 Revised....................................................76515
370.402 Revised....................................................76515
370.403 Revised....................................................76515
370.504 Revised....................................................76515
Chapter 6
601.106 Amended....................................................34839
601.603-70 (b)(8) added............................................34839
611.501 Redesignated from 611.502; (d) amended.....................34839
611.502 Redesignated as 611.501....................................34839
619.000 Added......................................................34839
619.803-71 (b) amended.............................................34839
619.811-3 (d)(3) amended...........................................34839
622.604-2 Amended..................................................34839
628.305--628.309-70 (Subpart 628.3) Revised........................34840
652.228-70 Added...................................................34841
    Clause corrected...............................................41177
652.228-71 Revised.................................................34841
    Clause corrected...............................................41177
652.228-74 Revised.................................................34841
    Clause corrected...............................................41177
652.228-75 Removed.................................................34842
652.228-76 Removed.................................................34842

                                  2007

  (Regulations published from January 1, 2007 through October 1, 2007)

48 CFR
                                                                   72 FR
                                                                    Page
Chapter 4
409 Authority citation revised.....................................31438
409.470 Removed....................................................31438
432 Authority citation revised.....................................31438
432.616 Revised....................................................31438
433 Authority citation revised.....................................31438
433.203-70 Revised.................................................31438
Chapter 5
511.204 (c)(3) and (d) revised; interim.............................4652
516.506 (d) redesignated as (e); new (d) added; new (e) amended; 
        interim.....................................................4652
532.206 (a) and (b) revised; interim................................4652
532.7003 (b) and (c) revised; interim...............................4652
538.273 (a)(2) and (b)(2) revised; interim..........................4652
538.7100--538.7104 (Subpart 538.71) Added; interim..................4653
546.710 (b) revised; interim........................................4654
552.216-72 Alternate II amended; Alternate IV added; interim........4654
552.216-73 Introductory text, Alternate I introductory text and II 
        introductory text amended; interim..........................4654
552.238-76 Added; interim...........................................4654
552.238-78 Alternate I added; interim...............................4654
552.238-80 Added; interim...........................................4654
Chapter 6
601.602-1 (b) amended..............................................45695

[[Page 429]]

601.603-1 Revised..................................................45695
601.603-70 (b)(5) removed; (b)(6), (7) and (8) redesignated as 
        (b)(5), (6) and (7)........................................45695
602.101-70 Amended.................................................45695
604.502 (b)(1)(i) removed; (b)(1)(ii) and (iii) redesignated as 
        (b)(1)(i) and (ii); new (b)(1)(ii) amended.................45695
605.403 (a) designation removed; amended...........................45695
606.302-6 (c)(1) amended...........................................45695
606.304 (a)(2) amended.............................................45695
609.404 Heading revised; amended...................................45695
609.404-70 Amended.................................................45695
613.201 (Subpart 613.2) Added......................................45695
619.201 (c) removed................................................45695
619.805-2 (a)(2) removed; (c)(3) redesignated as (b)...............45695
619.810 (d) redesignated as (c); new (c) amended...................45696
619.811-3 (d)(3) and (f) redesignated as (d) and (e)...............45696
622.404-3 Amended..................................................45696
622.1310 Heading revised...........................................45696
623.404 Removed....................................................45696
628.203--628.203-7 (Subpart 628.2) Heading revised.................45696
631.205-6 Amended..................................................45696
633.102 Amended....................................................45696
633.270-1 Removed..................................................45696
633.270-2 Removed..................................................45696
633.270-3 Removed..................................................45696
639 Added..........................................................51569
652.239-70 Added...................................................51569
652.239-71 Added...................................................51569
653.101-70 Amended.................................................45696


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